Work Session

Wednesday, November 2, 2016
9:00 a.m.

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

T. Dan Friedkin, Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Work Session held August 24, 2016

Approval of the Previous Minutes from the Annual Public Hearing held August 24, 2016

    Land and Water Plan

  1. Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan - Carter Smith
    • Internal Affairs Update
    • TPWD Stocking Report
    • Staff Recognition – Thomas Wilhelm
    • Rule Review – Beginning Rule Review
      • Chapter 57 – Fisheries
      • Chapter 58 – Oysters and Shrimp
      • Chapter 65 – Wildlife
    • Texas Freshwater Fisheries Center — 20th Year Anniversary
    • State Park Restorations
      • Palo Duro Canyon
      • Ft. Boggy State Park
    • Public Hunting Program Update
  2. Legislation

  3. Legislative Preview and Update – Carter Smith
  4. Financial

  5. Fiscal Year (FY) 2016 Internal Audit Update and Proposed FY 2017 Internal Audit Plan– Cindy Hancock (Action Item No. 2)
  6. Regulations Rule Review – Ann Bright
    1. Request Permission to Publish Proposed Changes in the Texas Register
      • Chapter 53 – Finance
      • Chapter 59 – Parks
      • Chapter 69 – Resource Protection
    2. Recommended Adoption of Proposed Changes and Completed Rule Review (Action Item No. 3)
      • Chapter 51 – Executive
      • Chapter 52 – Stocking Policy
      • Chapter 55 – Law Enforcement
      • Chapter 60 – Maintenance Review
      • Chapter 61 – Design and Construction
  7. Natural Resources

  8. 2017-2018 Statewide Recreational and Commercial Fishing Proclamation Preview - Ken Kurzawski, Mark Lingo, Brandi Reeder
  9. 2017-2018 Statewide Hunting Proclamation Preview – Shawn Gray, Ellis Powell, Dave Morrison
  10. Marine Dealer, Floating Cabin, and Party Boat Rules – Request Permission to Publish Proposed Rules in the Texas Register – Cody Jones, Julie Gilmore
  11. Commercial Fishing – Individual Fishing Quota Rules – Recommended Adoption of Proposed Rules – Brandi Reeder (Action Item No. 4)
  12. Oyster Lease Rules – Recommended Adoption of Proposed Rules in the Texas Register – Lance Robinson (Action Item No. 5)
  13. Shad Collection and Sale Rules – Request Permission to Publish Proposed Rules in the Texas Register – Ken Kurzawski
  14. Briefing on Flounder and Trout – Tiffany Hopper
  15. Briefing on San Marcos River Task Force – Melissa Parker
  16. Land Conservation

  17. Pipeline Corridor – Jefferson County – Approximately 30 Acres at the J.D. Murphree Wildlife Management Area - Ted Hollingsworth (Action Item No. 7)
  18. Exchange of Land – Bexar County – Approximately 9 Acres at Government Canyon State Natural Area – Ted Hollingsworth (Action Item No. 8)
  19. Acquisition of Land – Blanco County – Approximately 300 Acres at Pedernales Falls State Park - Request Permission to begin the Public Notice and Input Process - Ted Hollingsworth
  20. Disposition of Real Estate – Travis County – Approximately 7 Acres of Land Near McKinney Falls State Park – Ted Hollingsworth (Action Item No. 9)
  21. Executive Session

  22. Acceptance of Land – Presidio County – Approximately 640 Acres Adjacent to Big Bend Ranch State Park – Ted Hollingsworth (Executive Session and Action Item No. 10)
  23. Update on Regulatory Litigation – Ann Bright (Executive Session Only)
    • Oysters
    • Chronic Wasting Disease
  24. Personnel Matters – Performance Evaluation of TPWD Executive Director – Chairman T. Dan Friedkin - (Executive Session Only)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
TPWD Land and Water Resources Conservation and Recreation Plan
November 2, 2016

I.       Executive Summary: Executive Director Carter Smith will briefly update the Commission on the status of the agency’s efforts to implement the Land and Water Resources Conservation and Recreation Plan (the “Plan”).

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

The Plan consists of the following four goals:

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

Work Session Item No. 2
Presenter: Carter Smith

Work Session
Legislative Preview and Update
85th Texas Legislature (2017)
November 2, 2016

I.       Executive Summary:  Staff will present a legislative preview and update for the 85th Texas Legislative Session which will convene on January 10, 2017.

II.     Discussion:  Staff will provide updates regarding the joint budget hearing with oversight offices.  Staff will also discuss legislative issues and initiatives that may impactTexasParks and Wildlife Department in the upcoming session.


Work Session Item No. 3
Presenter: Cindy Hancock

Work Session
Fiscal Year (FY) 2016 Internal Audit Update and
Proposed FY17 Internal Audit Plan
November 2, 2016

I.       Executive Summary:  Staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 16 Internal Audit Plan and ongoing or completed external audits, provide the methodology used to develop the proposed FY17 Internal Audit Plan, and recommend adoption of the motion to approve the proposed FY17 Internal Audit Plan.

II.     Discussion:

  1. Staff will provide an update on the TPWD FY16 Internal Audit Plan as well as a briefing of any external audits that have been recently completed and/or are ongoing.
  2. Staff will discuss the methodology used in the development of the proposed FY17 Internal Audit Plan.
  3. Staff will recommend adoption of the motion to approve the proposed FY17 Internal Audit Plan.  

III.  Recommendation:  Staff will be recommending that the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission approves the TPWD FY17 Internal Audit Plan as listed in Exhibit A.”

Attachments – 1

  1. Exhibit A – Exhibit A – Proposed TPWD FY17 Internal Audit Plan

Work Session Item No. 3
Exhibit A

TPWD FY17 Proposed/Draft Internal Audit Plan
Project Title Comments/Description Budgeted Hours
Contract Audit To determine if proper contracting processes are in place to be compliant with state contracting regulations. 400
Audits of Selected Law Enforcement Offices To determine if proper fiscal control processes are used and consigned stock is tracked (12 Offices). 1200
Audits of Selected State Parks To determine if proper fiscal control processes are used (32 Parks). 3200
Audit of Selected Information Technology Systems To determine controls over select information systems; information and reporting accuracy. 500
Audit of Selected Federal Grants To determine compliance to federal and state regulations regarding federal grants. 500
Audit of License Agent Requirements To determine if rules are established to qualify License agents; review of the number of failed sweeps; determine if there is a need for revenue guarantee bonds or deposits. 400
Follow-up Audit To determine the implementation status of audit recommendations. 400
Special Projects Advisory; Request for assistance from management. 100
TOTAL 6700

Alternate Project: Audit of TPWD’s Continuity of Operations Plan (COOP)


Work Session Item No. 4
Presenter: Ann Bright

Work Session
Regulations Rule Review
Request Permission to Publish Proposed Changes in the Texas Register
November 2, 2016

I.       Executive Summary: As required by the Administrative Procedure Act, TPWD is undertaking a review of each TPWD rule under its jurisdiction.  TPWD staff will update the Commission on this process and seek permission to undertake additional actions in connection with this process.

II.     Discussion: Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years.  The review must include an assessment of whether the reasons for initially adopting a rule continue to exist. Notice of the proposed review must be published in the Texas Register for public comment. Following the review, rules must be readopted, adopted with changes, or repealed, based on the review.

The TPWD rule review process normally occurs over three Commission meetings.  In the first meeting, staff seeks permission to begin the rule review process and to publish notice of the rule review in the Texas Register.  In the second meeting, staff seeks permission to publish any proposed rule changes or repeals resulting from the rule review in the Texas Register for public comment.  In the third meeting, staff seeks adoption of proposed rule changes, and adoption of the completed rule review (i.e., readoption of the remaining rules).

In August, staff informed the Commission of the initiation of the review of rules in Chapter 53, Finance; Chapter 59, Parks; Chapter 69, Resource Protection. Staff has reviewed those rules and is now seeking permission to publish purposed changes to Chapters 53, 59 and 69 in the Texas Register to solicit public comment.

Attachments – 4

  1. Exhibit A – Summary of Proposed Changes to Chapters 53, 59, 69
  2. Exhibit B – Proposed Changes to Chapter 53
  3. Exhibit C – Proposed Changes to Chapter 59
  4. Exhibit D – Proposed Changes to Chapter 69

Work Session Item No. 4A
Exhibit A

Chapter 53 – Finance

Subchapter A, Fees

Division 1, License, Permit, and Boat and Motor Fees

§53.2, License Issuance Procedures, Fees, and Exemption Rules

Correct statutory and regulatory cross-references in (a)(3)(B)(iii), (iv).

§53.14, Deer Management and Removal Permits

Delete reference to “antlerless and spike buck control permit application processing fee” since these antlerless and spike buck control permits are no longer being issued.

Subchapter B, Stamps

§53.60, Stamps

  • Modify reference to stamp form, design and issuance to reflect current practice.
  • Eliminate provisions regarding nongame and endangered species stamps, and collector’s edition stamps that are no longer issued.

Subchapter E, Display of Boat Registration

§53.91, Documented Vessels

  • Add the term “certificate of number” in (a) and “participating Tax assessor-Collector office” in (a), (b) and (c) to more accurately describe the registration of vessels.
  • Delete reference to tax for vessels greater than 65 feet in length in (c)(3) since that tax is not collected by the department;
  • Add reference to Parks and Wildlife Code §31.026 in (c)(4) to more completely describe the authority for collection of the appropriate registration fee.

Chapter 59 – Parks

Subchapter A, Park Entrance and User Fees

§59.2, Park Entrance Fees

  • Delete inaccurate references to a “permit” in (a) and (a)(1);
  • Eliminate the redundant reference to an overnight facility use fee in (a)(3);
  • Replace the word “imposed” with the more accurate term “collected” in (b).

§59.3, Park Entry Passes

  • Delete the duplicative reference to a “tour” fee;
  • Delete the unnecessary word “other” from (1)(A)(ii) and (iii);
  • Add “motorcycle” to the list of means by which persons may enter a park other than a vehicle in (1)(A)(iii).
  • Delete “guided” from (1)(B)(ii) since not all tours in parks are guided;
  • Delete inaccurate reference to an “order of” the department’s executive director.

§59.4, Activity and Facility Use Fees

  • Combine the group day use facility fee in (b)(3) with the group day use area fee in (b)(4);
  • Delete the narrow reference to “recreation/meeting hall/dining hall” in (b)(3);
  • Delete the narrow reference to “bunkhouses, barracks, campsites, shelters” and expand the fee range to accommodate lower fees in (b)(5) which is renumbered as (b)(4);
  • Substitute the more general term “overnight facility” for “bunkhouse/hotel/motel;” clarify that the variable fee is based on the facility or the number of occupants; and, expand the fee range to accommodate lower fees in (b)(5) which is renumbered as (b)(6);
  • Move the fee for group use of a swimming pool facility from (c)(2)(C) to (b)(8);
  • Delete the detailed description of types of tours for which a fee may be charged and simply refer to “tour fees” and replace “$.25” with the more accurate “$0.25” in (c)(7).

Chapter 69-Resource Protection

Subchapter A, Endangered, Threatened and Protected Native Plants

§69.6, Permit and Tag Fees

Repeal section as duplicative since the fee for the commercial plant permit is also located in §53.15(h)(1).

§69.8, Endangered and Threatened Plants

  • Delete “Johnston’s frankenia (Frankenia johnstonii)” from the graphic at (a) since this plant was federally delisted in January 2016.
  • Add Neches “River rose-mallow (Hibiscus dasycalyx)” to the list of threatened species in the graphic at (b) since this plant has been added to the federal threatened list.

Subchapter B, Fish and Wildlife Values

§69.26, Commercial Species—Recovery Value

Add mechanism for calculating the value of alligator eggs to (a).

Subchapter H, Issuance of Marl, Sand, and Gravel Permits

§69.102, Definitions

Replace “TNRCC” (Texas Natural Resources Conservation Commission) with “Texas Commission on Environmental Quality (TCEQ)” in (8).

§69.116, Conditions

  • Change “§65.115(b)” to “§69.115(a)” in first paragraph to correct the cross-reference.
  • Change in §69.101” to §69.118” in (3) to correct the cross-reference.

§69.121, Prices

  • Delete outdated reference to previous royalty of 6.25% in (a) and replace “$.20 ton” with $0.20 ton.”

Subchapter J, Scientific, Educational, and Zoological Permits

§69.301, Definitions

Update taxonomical description of raptor in (3).

Subchapter K, Sale of Nongame Species

§69.405, Permit Renewal

Replace reference to duplicative and erroneous fee with reference to §53.15 which contains the correct fee.


Work Session Item No. 4A
Exhibit B

LEGISLATIVE RULES REVIEW

CHAPTER 53. FINANCE

PROPOSAL PREAMBLE

         The Texas Parks and Wildlife Department proposes amendments to §§53.2, 53.14, 53.60, and 53.91, concerning Finance.  The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

         The proposed amendment to §53.2, concerning License Issuance Procedures, Fees, and Exemption Rules, would correct statutory and regulatory cross-references in subsection (a)(3)(B)(iii) and (iv). Current §53.2(a)(3) provides that a person who has acquired a hunting license electronically may hunt prior to obtaining the physical license so long as the person has a valid confirmation number. However, the current provisions in subparagraph (B)(iii) and (iv) regarding hunting on certain public lands and or department-leased land contain inaccurate references to provisions authorizing those public hunting activities. The proposed amendment corrects the inaccuracy.

         The proposed amendment to §53.14, concerning Deer Management and Removal Permits would delete the reference to the “antlerless and spike buck control permit application processing fee” since these permits are no longer being issued. The regulations providing for the issuance of antlerless and spike buck control permits were repealed by action of the Parks and Wildlife Commission in March 2016, and published in the August 12, 2016 issue of the Texas Register (14 TexReg 6052).  The elimination of the antlerless and spike buck control permit obviates the need for the associated permit application fee.

         The proposed amendment to §53.60, concerning Stamps, would modify the references to stamp form, design, and issuance to reflect current practice, and eliminate provisions regarding nongame and endangered species stamps and collector’s edition stamps. The department no longer issues collector’s edition stamps. Currently, a “stamp” is issued as an endorsement on the appropriate license issued through the department’s electronic license sales system.  The proposed amendment is necessary to reflect current practice.

         The proposed amendment to §53.91, concerning Documented Vessels, would clarify various provisions. The proposed amendment would add the term “certificate of number” in subsection (a) and “participating Tax assessor-Collector office” in subsections (a) — (c) to more accurately describe the locations where vessels may be registered. The proposed amendment also would delete the reference to the tax for vessels greater than 65 feet in length in subsection (c)(3) since the tax on these vessels is not collected by the department.  In addition, a reference is to Parks and Wildlife Code, §31.026 would be added to subsection (c)(4) to more completely describe the authority for collection of the appropriate registration fee.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be clearer, better organized, and more accurate regulations governing the processes and entities administered under the provisions of Chapter 53.

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

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. 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, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the rules will not directly affect small businesses and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

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

         (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 rules may be submitted to Robert Macdonald, Regulations Coordinator, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §42.006 which authorizes the commission to prescribe by rule requirements relating to the possessing a license issued under Parks and Wildlife Code, Chapter 42; §42.010, which allows the department to issue tags for deer during each year or season; §61.054, 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; and §61.057, which authorizes the commission to determine when conditions warrant the issuance of antlerless permits.

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

6. Text.

         §53.2. License Issuance Procedures, Fees, Possession, and Exemptions Rules.

                 (a) Hunting license possession.

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

                         (3) A person may hunt deer in this state without having a valid hunting license in immediate possession only if that person:

                                  (A) has acquired a license electronically (including by telephone) and has a valid confirmation number in his possession; and

                                  (B) is lawfully hunting:

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

                                          (iii) by special permit under the provisions of Chapter 65, Subchapter H of this title[chapter] (relating to Public Lands Proclamation);

                                          (iv) on department-leased lands under the provisions of Parks and Wildlife Code, §11.0271[§11.0272].

                                          (v) (No change.)

                         (4) (No change.)

                 (b) – (f) (No change.)

         §53.14. Deer Management and Removal Permits.

                 (a) – (c) (No change)

                 [(d) Antlerless and spike buck deer control permit application processing fee — $378.]

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

         Issued in Austin, Texas, on

         The amendment is proposed under the authority of Parks and Wildlife Code, §11.055 and §11.056, which authorize, but do not require, the department to issue art decal or stamps; §12.701, which allows the department to authorize the issuance of a license, stamp, permit, or tag by a license deputy; Parks and Wildlife Code, §12.702, which authorizes the commission to set collection and issuance fees by rule for a license, stamp, tag, permit, or other similar item issued under any chapter of the code; §42.010 which requires the department to prescribe the form of and issue the license and tags authorized by Chapter 42.

         The proposed amendment affects Parks and Wildlife Code, Chapters 11, 12, and 42.

         §53.60. Stamps

                 (a) Stamp Form, Design and Manner of Issuance. A required stamp shall be issued as an endorsement noted on the license issued through the department’s automated system. [Stamp form. Stamp sizes and formats shall be prescribed by the executive director.]

                 [(b) Stamp Design. An artist’s original rendition will be the basic design. Stamps issued by an automated system may be an alternate design as prescribed by the executive director.]

                 [(c) Stamp Manner of Issuance. The stamp will be issued upon payment of the prescribed fee in a manner determined by the executive director.]

                 (b)[(d)] Stamp Purchase Identification and Possession Requirements.

                          (1) A person may hunt without a required state hunting stamp in immediate possession if the person has acquired a stamp electronically (including by telephone) and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.

                         (2) A person may fish without a required fishing stamp in immediate possession if the person has acquired a stamp electronically (including by telephone) and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.

                         [(3) A state hunting or fishing stamp issued in an automated manner to a person using the stamp is valid for hunting or fishing purposes without the user’s signature on its face.]

                 (c)[(e)] Stamp Exemptions.

                            (1) The commission grants the executive director authority to exempt persons participating in any event organized for the primary purpose of promoting participation in fishing or hunting activities from the requirement to purchase or possess the following stamps:

                                  (A) migratory game bird stamp;

                                  (B) archery hunting stamp;

                                  (C) upland game bird stamp;

                                  (D) saltwater sportfishing stamp; and

                                  (E) freshwater fishing stamp.

                         (2) All nonresident spring turkey hunting license holders are exempt from requirements for acquisition and possession of the upland game bird stamp.

                         (3) Youth license holders and lifetime resident hunting license holders are exempt from requirements for acquisition and possession of the following stamps:

                                  (A) migratory game bird stamp;

                                  (B) upland game bird stamp; and

                                  (C) archery hunting stamp.

                         (4) All lifetime resident combination hunting and fishing license holders are exempt from requirements for acquisition and possession of the following stamps:

                                  (A) migratory game bird stamp;

                                  (B) upland game bird stamp;

                                  (C) archery hunting stamp;

                                  (D) saltwater sportfishing stamp; and

                                  (E) freshwater fishing stamp.

                         (5) All lifetime resident fishing license holders are exempt from requirements for acquisition and possession of the following stamps;

                                  (A) saltwater sportfishing stamp;

                                  (B) freshwater fishing stamp.

                         (6) All persons meeting the definition of a qualified disabled veteran under the provisions of Parks and Wildlife Code, §42.012(c), are exempt from the fees for the following stamps:

                                  (A) migratory game bird stamp;

                                  (B) upland game bird stamp;

                                  (C) archery;

                                  (D) saltwater sportfishing; and

                                  (E) freshwater fishing.

                         (7) All Texas residents on active duty in the armed forces of the United States (including members of the Reserves and National Guard on active duty) are exempt from the fees for the following stamps:

                                  (A) migratory game bird stamp;

                                  (B) upland game bird stamp;

                                  (C) archery;

                                  (D) saltwater sportfishing; and

                                  (E) freshwater fishing.

                         (8) Special fishing license holders are exempt from the requirements for acquisition and possession of the following stamps:

                                  (A) saltwater sportfishing stamp; and

                                  (B) freshwater fishing stamp.

                         (9) All one-day all-water fishing license holders are exempt from requirements for acquisition and possession of the following stamps:

                                  (A) saltwater sportfishing stamp; and

                                  (B) freshwater fishing stamp. (1) – (9) (No change.)

                 (d)[(f)]Obsolete Stamps and Decals.

                         (1) An obsolete stamp is a stamp that is not valid.

                         (2)[(1)] Obsolete stamps and decals shall be sold for informational purposes, [either] at an established fee for collector’s edition stamp package, [or at face value for individual stamps,] plus a processing charge sufficient to recover shipment, postage, and sales tax.

                         [(2) Stamps and decals shall remain on sale for a maximum of one fiscal year after expiration. During the second year, obsolete stamps and decals shall be sold only by book.]

                         [(3) Previous issues of Nongame and Endangered Species stamps may be made available for sale at $10 for individual stamps or decals, and $75 or less for a complete set of the 11 stamps issued from 1985 through 1995. The department may sell a limited number of collector’s sets of the 11 stamps issued from 1985 through 1995, framed and mounted, for $300 or less per set. The department may add to this price a processing charge sufficient to recover shipment, postage, and sales tax. The Department may give away earlier issues of decals and use previously issued stamps in merchandise items that are offered for sale or as promotional items.]

                 [(g) Nongame and Endangered Species stamps issued during and after 1996 are one of seven stamps issued as collectors series set and are subject to the same rules as other obsolete stamps.]

                         [(1) The executive director may maintain a limited number of stamps and decals of each type and year.]

                         [(2) All other obsolete stamps and decals shall be destroyed.]

                 (e)[(h)] Collector’s edition stamp package.

                         (1) A collector’s edition stamp package shall consist of one each of the following stamps:

                                  (A) migratory game bird stamp;

                                  (B) upland game bird stamp;

                                  (C) nongame stamp;

                                  (D) archery stamp;

                                  (E) saltwater sportfishing stamp; and

                                  (F) freshwater fishing stamp.

                           (2) Stamps in the package are not valid for hunting or fishing.

                           (3) Fee for the package shall be $10 wholesale price and $20 retail price plus applicable sales tax.

                 (f)[(i)] In addition to the freshwater fishing stamp, the department may make available a collectible freshwater habitat stamp for a fee of $5.

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

         Issued in Austin, Texas, on

         The amendment to 53.91 concerning Documented Vessels is proposed under the authority of Parks and Wildlife Code, §§31.024, 31.025, and 31.0341 which provide for the submission of an application to and issuance by the county tax assessor-collector of certificates of number and certificate of title for vessels; Parks and Wildlife Code, §31.026 concerning the establishment of fees by the commission for an original or renewal certificate of number for a vessel; Parks and Wildlife Code, §§31.003(1) and Tax Code, Chapter 160 which does not include vessels greater than 65 feet in length from the provisions regarding the collection of taxes in Parks and Wildlife Code, Chapter 31, and Tax Code, Chapter 160.

         The proposed amendments affect Parks and Wildlife Code, Chapter 31 and Tax Code, Chapter 160.

         §53.91. Documented Vessels.

                 (a) A certificate of number and registration decal for a new or newly documented vessel may be obtained at any TPWD boat registration office or participating Tax Assessor-Collector office. At the time of application, applicants must present:

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

                 (b) A certificate of number and registration decal for a used or previously documented vessel may be obtained at any TPWD boat registration office or participating Tax Assessor-Collector office. At the time of application, applicants must present:

                         (1) — (4) (No change.)

                 (c) Renewal of certificate of number and registration decal for a documented vessel may be obtained at any TPWD boat registration office. At the time of application, applicants must present:

                                  (1) (No change.)

                                  (2) a copy of the current documentation from the U.S. Coast Guard National Vessel Documentation Center (USCGNVDC) or their website in the current owner’s name; and

                                  [(3) for vessels greater than 65 feet in length for the first registration renewal, verification of payment under Tax Code, Chapter 151, or verification from the TPWD boat system; and]

                                  (3)[(4)] payment of the appropriate registration fee as required by Parks and Wildlife Code, §31.026 and §53.16 of this title.

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

         Issued in Austin, Texas, on


Work Session Item No. 4A
Exhibit C

LEGISLATIVE RULES REVIEW

CHAPTER 59. PARKS

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§59.2 — 59.4, concerning State Parks. The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review. The proposed amendments are nonsubstantive and intended to clarify regulatory provisions. The department wishes to stress that the rules as proposed will not result in additional fees or increased fees at any park and are strictly nonsubstantive in that regard.

         The proposed amendment to §59.2 concerning Park Entrance Fees, would delete references to a “permit” in subsection (a). In parks at which a fee is required for park entrance, the department has determined that it is more accurate to describe the fee as an entrance fee, rather than a permit fee. The proposed amendment also would alter subsection (a)(3) to eliminate the reference to an overnight facility use fee since such fees are addressed in §59.4. The proposed amendment also would replace the word “imposed” in subsection (b) with the more accurate term “collected” to clarify that that fee is actually collected, rather than imposed.

         The proposed amendment to §59.3 concerning Park Entry Passes, would delete the reference to a “tour” fee since that fee is addressed in §59.4(c)(7). In addition, the proposed amendment would delete the word “other” from paragraph (1)(A)(ii) and (iii) because it is unnecessary in describing the number of persons authorized to enter a park by an annual park pass. Similarly, “motorcycle” is added to the list of means by which persons may enter a park other than a vehicle in paragraph (1)(A)(iii) and the word “guided” is deleted from paragraph (1)(B)(ii), since not all tours in parks are guided. The proposed amendment would also remove  reference to an “order of” the department’s executive director from paragraphs (1)(D) and (2)(C) since the executive director may document the establishment of the referenced fee by a method other than an executive order.

         The proposed amendment to §59.4, concerning Activity and Facility Use Fees, would combine the group day use facility fee in subsection (b)(3) with the group day use area fee in subsection (b)(4) and remove the reference to “recreation/meeting hall/dining hall” in subsection (b)(3) to better describe the facilities for which the fee is imposed. The proposed amendment would also delete the narrow reference to “bunkhouses, barracks, campsites, shelters” and expand the fee range to accommodate lower fees in (b)(4).  The proposed amendment would amend (b)(5) to substitute the more general term “overnight facility” for “bunkhouse/hotel/motel, “clarify that the variable fee is based on the facility or the number of occupants, and expand the fee range to accommodate lower fees. In addition, the proposed amendment would move the fee for group use of a swimming pool facility from subsection (c)(2)(C) to subsection (b)(8) since other group fees are located in subsection (b). The proposed amendment also would alter subsection (c)(7) by removing the detailed description of types of tours and simply refer to “tour fees.” The proposed amendment also would alter  subsection(c)(7) to replace “$.25” with the more accurate “$0.25.”

2. Fiscal Note.

         Kevin Good, Special Assistant to the Division Director of the State Parks Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the proposed rules.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be clearer, more understandable rules to enhance recreational benefits to the park-going public, consistent management of state park concessions, and the protection of habitats and ecosystems on department lands for the enjoyment of the public.

         (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, microbusinesses, or persons required to comply with the rules as proposed. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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 rules may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Kevin Good, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4415 (e-mail: kevin.good@tpwd.texas.gov).

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, §11.027(e), which authorizes the commission to establish by rule for the collection of a fee for entering, reserving, or using a facility or property owned or managed by the department; §13.015(a), which authorizes the commission to set park user fees for park services; §13.018(e), which requires the commission to establish by rule the eligibility requirements and privileges available to the holder of a state parklands passport; and §13.0191, which authorizes the department to set fees for the use of a facility or lodging at a state park in an amount to recover the direct and indirect costs of providing the facility or lodging and provide a reasonable rate of return to the department.

         The proposed rules affect Parks and Wildlife Code, Chapter 13.

6. Text.

         §59.2. Park Entrance Fees.

                 (a) An entrance/day use [permit] fee may be levied at a state park as provided in this section.

                         (1) Payment of an[An] entrance/day use fee[permit] allows unlimited entry privileges to a person for the period of time specified by the park[permit].

                         (2) (No change.)

                         (3) Entry[When an overnight facility use fee has been paid in addition to an entry fee, entry] privileges cease at closing time on the day of checkout, unless the executive director has approved an alternative timeframe, which shall be clearly posted at the park.

                 (b) An entrance fee of $1.00 — $15.00 per person may be collected[imposed] at designated parks.

                 (c) (No change.)

         §59.3. Park Entry Passes. Park entry passes authorize entry privileges to parks where entry fees apply but are not valid for [tour,] activity or other applicable fees.

                 (1) Annual Park Entrance Passes.

                         (A) A valid annual park entrance pass authorizes park entry without payment of an individual entrance fee for the holder of the annual pass, and:

                                  (i) (No change.)

                                  (ii) up to 14 [other] persons accompanying the pass holder in the same boat if the holder of the annual park entrance pass is entering by boat; or

                                  (iii) up to 14 [other]persons accompanying the pass holder if the holder of the annual park entrance pass is entering by motorcycle, bicycle or on foot .

                         (B) An annual park entrance pass is valid only for private, noncommercial use and is not valid for:

                                  (i) (No change.)

                                  (ii) commercial use such as [guided] tour groups.

                         (C) (No change.)

                         (D) The fee for an annual park entrance pass shall be established by [order of] the executive director within the range of $50 — $100.

                         (E) (No change.)

                 (2) Youth Group Annual Entrance Pass.

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

                         (C) The fee for a pass under this subsection shall be established by [order of] the executive director within the range of $50 — $300.

                         (D) (No change.)

                 (3) State Parklands Passport. A state parklands passport shall be issued at no cost to any person meeting the criteria established by Parks and Wildlife Code, §13.018.

                         (A) – (D) (No change.)

                         (E) The department may collect[impose] a fee for a replacement state parklands passport.

         §59.4. Activity and Facility Use Fees.

                 (a) (No change.)

                 (b) Fee ranges — facility use:

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

                         (3) group day use facility or area[(recreation/meeting hall/dining hall)] — $15 [$50] — $1,000;

                         [(4) group day use area — $17-$200;]

                         (4)[(5)] group overnight use facility [(bunkhouses, barracks, campsites, shelters)], variable by facility type or number of occupants — $20 [$100] — $1,500;

                         (5)[(6)] overnight use facility [bunkhouse/hotel/motel room]variable by facility or number of occupants$20 [$35]-225;

                         (6)[(7)] excess vehicle parking(per vehicle) — $1.00-$6.00(parking areas designated by park superintendent);

                         (7)[(8)] (excess occupancy fee (in addition to facility use fee), per person — $1.00-$25;

                         (8) swimming pool facility $35 — $750.

                 (c) Fee ranges — activities:

                         (1) (No change.)

                         (2) swimming pools use:

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

                                  [(C) group use(before or after normal operating hours) — $35-$750]

                         (3) – (6) (No change.)

                         (7) tour fees [(educational, interpretive, instructional, adventure and/or entertainment or any combination of fees packaged into one rate for park-specific special events up to and including multi-night visitation, food, accommodations, increased staffing, special preparations or equipment, or similar considerations)] per person — $0.25[$.25] -$1,000;

                         (8) – (9) (No change.)

                        (d) – (e) (No change.)


Work Session Item No. 4A
Exhibit D

RULES REVIEW

CHAPTER 69. RESOURCE PROTECTION

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (the department) proposes the repeal of §69.6 and amendments to §§69.2, 69.8, 69.26, 69.102, 69.116, 69.121, 69.301 and 69.405, concerning Resource Protection.  The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

         The proposed repeal of §69.6, concerning Permit and Tag, would eliminate a duplicative provision regarding the fee for a commercial plant permit. Over the years, the department has sought to locate regulations regarding most department fees in 31 TAC Chapter 53. In 2004, the fee for the commercial plant permit was adopted as part of §53.15 (29 TexReg 6309) and is now at §53.15(h)(1) (see, 34 TexReg 5381). Therefore, §69.6 is duplicative and unnecessary.

            The proposed amendment to §69.2 concerning Scientific Plant Permit would correct a cross-reference in (d)(2) regarding the letter of permission required to engage in regulated activities on public land. The requirement to obtain a letter of permission is contained in (c)(2) rather than (b)(2).  The proposed amendment corrects that error.

            The proposed amendment to §69.8, concerning Endangered and Threatened Plants, would remove Johnston’s frankenia (Frankenia johnstonii) from the list of endangered species of plants in subsection (a) and add Neches River rose-mallow (Hibiscus dasycalyx) to the list of threatened species of plants in (b). Under Parks and Wildlife Code, Chapter 88, a species of plant is endangered, threatened, or protected if it is indigenous to Texas and (1) listed by the federal government as endangered, or (2) designated by the executive director of the Texas Parks and Wildlife Department as endangered, threatened or protected.  At the current time, the department maintains a single list of endangered plants that contains only those plants indigenous to Texas listed by the federal government as endangered. The proposed amendment removes the Johnston’s frankenia from the endangered species list because this species has been removed from the federal endangered species list.

         The proposed amendment to §69.26, concerning Commercial Species—Recovery Value, would alter subsection (a) by adding a mechanism for calculating the value of alligator eggs. Parks and Wildlife Code, §12.301, provides that a “person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of this code or a proclamation or regulation adopted under this code is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured.” Parks and Wildlife Code, §12.302, requires the commission to adopt rules “to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds and animals.”  The current per-foot calculation applicable to alligators does not accurately reflect the commercial value of alligator eggs. Therefore, the proposed amendment would add a mechanism for more accurately calculating the value of alligator eggs based on the market price and the survival rate of hatchlings.

         The proposed amendments to regulations in Subchapter H, concerning Issuance of Marl, Sand and Gravel Permits would make several nonsubstantive changes.  The proposed amendment to §69.102, concerning Definitions, would replace the reference to TNRCC in paragraph (8) with the current agency name, Texas Commission in Environmental Quality. The proposed amendment to §69.116, concerning Conditions, would correct cross-references, replacing “§65.115(b)” with “§69.115(a)” and “§69.101” with “§69.118.” The proposed amendment to §69.121, concerning Prices, would delete an outdated reference to the previous royalty of 6.25% in subsection (a) and replace “$.20 ton” with the more accurate “$0.20 ton.”

         The proposed amendment to §69.301, concerning Definitions, would update taxonomical information regarding the definition of “raptor” in paragraph (3).  From time to time the scientific community reclassifies an organism in light of consensus and/or emerging science. Scientific reclassification or change in nomenclature of taxa at any level in the taxonomic hierarchy does not, in and of itself, affect the status of a species as endangered, threatened or protected, but the department believes that the common and scientific names of listed organisms should reflect the most current agreement by the scientific community. Current §69.601(3) defines raptor by reference to the order Falconiformes or Stringiformes.  However, the classification of Falconiformes has been split into two orders, Accipitriformes (eagles, hawks, kites, harriers, osprey, secretary bird, etc.) and Falconiformes (all falcons, caracaras). In addition, all New World Vultures  have been placed into their own Order, Cathartiformes, based upon recent phylogenetics research. The proposed amendment would make these taxonomic changes.  Strigiformes remains unchanged.

         The proposed amendment to §69.405, concerning Permit Renewal, eliminates a reference to a duplicative and inaccurate provision regarding the nongame species fee in §53.15(c)(5) and (6). Over the years, the department has sought to locate regulations regarding most fees department fees in 31 TAC Chapter 53. In 2004, the fee for a nongame species permit and permit renewal was included in the fees relocated to §53.15 (29 TexReg 6309), and was increased to $210 in 2009 and redesignated as §53.15(c)((5) and (6) (see, 34 TexReg 5381).

2. Fiscal Note.

         Ann Bright, General Counsel has determined that for each of the first five years the repeal and amendments as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be clearer, better organized, and more accurate regulations governing the processes and entities administered under the provisions of Chapter 69.

         (B) There will be no adverse economic impact on persons required to comply with the rule as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. 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, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the rules will not directly affect small businesses and/or micro-businesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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 rules may be submitted to Mr. Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4770, e-mail: robert.macdonald@tpwd.texas.gov or on the department website at www.tpwd.texas.gov.

5. Statutory Authority.

         The repeal is proposed under Parks and Wildlife Code §88.006, which requires the department to adopt regulations to administer Parks and Wildlife Chapter 88 concerning Endangered Plants, including regulations to address permit application fees.

         The proposed repeal affects Parks and Wildlife Code, Chapter 88.

6. Rule Text

         §69.6. Permit and Tag Fees.

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

         Issued in Austin, Texas, on

         The amendments are proposed under Parks and Wildlife Code, §88.006, which requires the department to adopt regulations to administer the provisions of Parks and Wildlife Code, Chapter 88.

         The proposed amendments affect Parks and Wildlife Code, Chapter 88.

         §69.2 Scientific Plant Permit

                 (a) – (c) (No change).

                 (d) Special provisions.

                         (1) (No change).

                         (2) While conducting any permit activities on public lands, each person named on a permit shall carry copies of the permit and the letter of permission required by subsection (c)[(b)](3) of this section, and shall produce such documents upon demand by a game warden.                          (3) – (4) (No change).

         §69.8. Endangered and Threatened Plants.

                 (a) The following plants are endangered:

CACTI

star cactus (Astrophytum asterias)

Nellie cory cactus (Escobaria minima)

Sneed pincushion cactus (Escobaria sneedii var. sneedii)

black lace cactus (Echinocereus reichenbachii var. albertii)

Davis’ green pitaya (Echinocereus davisii)

Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii)

TREES, SHRUBS, AND SUBSHRUBS

[Johnston’s frankenia (Frankenia johnstonii)]

Walker’s manioc (Manihot walkerae)

Texas snowbells (Styrax platanifolius ssp. texanus)

WILDFLOWERS

large-fruited sand verbena (Abronia macrocarpa)

South Texas ambrosia (Ambrosia cheiranthifolia)

Texas ayenia (Ayenia limitaris)

Texas poppy mallow (Callirhoe scabriuscula)

Terlingua Creek cat’s-eye (Cryptantha crassipes)

slender rush-pea (Hoffmannseggia tenella)

Texas prairie dawn (Hymenoxys texana)

white bladderpod (Physaria pallida)

Texas trailing phlox (Phlox nivalis ssp. texensis)

Texas golden gladecress (Leavenworthia texana)

ashy dogweed (Thymophylla tephroleuca)

Zapata bladderpod (Physaria thamnophila)

ORCHIDS

Navasota ladies’-tresses  (Spiranthes parksii)

GRASSES AND GRASS-LIKE PLANTS

Little Aguja pondweed (Potamogeton clystocarpus)

Texas wild-rice (Zizania texana)

                 (b) The following plants are threatened:

CACTI

Bunched cory cactus (Coryphantha ramillosa ssp. ramillosa)

Chisos Mountains hedgehog cactus (Echinocereus chisoensis var. chisoensis)

Lloyd’s mariposa cactus (Sclerocactus mariposensis)

TREES, SHRUBS, AND SUBSHRUBS

Hinckley’s oak (Quercus hinckleyi)

Neches River rose-mallow (Hibiscus dasycalyx)

WILDLFLOWERS

Pecos Sunflower (Helianthus paradoxus)

Tinytim (Geocarpon minimum)

                 (c) (No change)

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

         Issued in Austin, Texas, on

         The amendment is proposed under Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds and animals.

         The proposed amendment affects Parks and Wildlife Code, Chapter 12.

         §69.26. Commercial Species—Recovery Value

                 (a) Recovery of value for commercial species is based on the following:

                         (1) ex-vessel or dockside price (by weight or individual as normally determined);[,or]

                         (2) for alligators, current per-foot market value; and

                         (3) for alligator eggs, a number derived by multiplying the current market alligator egg price by the current percentage of successful hatchlings per 100 eggs.

                 (b)-(d) No change.

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

         Issued in Austin, Texas, on

         The amendments are proposed under Parks and Wildlife Code, §86.020, which authorizes the commission to adopt rules governing applications, fees, and permits to disturb, take or carry away marl, sand, gravel, shell or mudshell, sand, shell and gravel.

         The proposed amendments affect Parks and Wildlife Code, Chapter 86.

         §69.102. Definitions.

                 (1) – (7) (No change)

                 (8) River segment — Reach of river and tributaries as designated by the Texas Commission on Environmental Quality (TCEQ)[TNRCC] based on flow and water quality attributes in the Surface Water Quality Standards.

                 (9) – (10) (No change)

         §69.116. Conditions. A general permit may be authorized for an activity listed in §69.115(a) [§69.115(b)] of this title (relating to General Permit), provided that the proposed activity:

                 (1) – (2) (No change.

                 (3) will be conducted in compliance with the best management practices set forth in §69.118[§69.101] of this title (relating to Best Management Practices).

         §69.121. Prices.

                 (a) The commission, with the approval of the governor, establishes a minimum royalty of $0.20[$.20] ton for sedimentary materials. The permittee shall pay the minimum royalty or a percent royalty of 8.0%[6.25%] on the average selling price per ton sold calculated on a monthly basis, whichever is higher. [The percent royalty shall increase to 8.0% on September 1, 1996.]

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

                 (b) – (d) (No change.)

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

         Issued in Austin, Texas, on

         The amendment is proposed under Parks and Wildlife Code, §43.022, which  requires the commission to adopt rules governing the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, zoological collection, rehabilitation and educational display.

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

         §69.301. Definitions.

                 (1) — (2) (No change)

                 (3) Raptor — A bird of the order Falconiformes, Accipitriformes, Cathartiformes, or Strigiformes.

                 (4) – (7) (No change)

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

         Issued in Austin, Texas, on

         The amendment is proposed under Parks and Wildlife Code, §67.004 and §67.0041, which requires the commission to establish by regulation any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species, and authorizes the department to issue permits for the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife, and to establish fees for such permits.

         The proposed amendment affects Parks and Wildlife Code, Chapter 67.

         §69.405. Permit Renewal.

                 (a) A person possessing a permit issued under this subchapter may renew that permit by submitting a completed permit renewal form to the department, accompanied by a permit renewal fee specified in §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits[of $200]. A permit renewal shall be valid for one year.

                 (b) (No change.)

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

         Issued in Austin, Texas, on


Work Session Item No. 5
Presenters: Ken Kurzawski
Mark Lingo
Brandi Reeder

Work Session
2017-2018 Statewide Recreational and Commercial Fishing Proclamation Preview
November 2, 2016

I.       Executive Summary:  This item apprises the Texas Parks and Wildlife (TPW) Commission of potential changes to recreational and commercial fishing regulations for the 2017-2018 season.

II.     Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking freshwater and saltwater fisheries resources is delegated to the TPW Commission under Parks and Wildlife Code, Chapters 61 (Uniform Wildlife Regulatory Act), 66 (Fish), 67 (Nongame Species), 76 (Oysters), 77 (Shrimp), and 78 (Mussels, Clams, and Crabs).  The potential changes are based upon statutory requirements and Commission policy, including scientific investigation and required findings of fact, where applicable.  The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the fisheries resources of the state.

Attachments – 1

  1. Exhibit A – Potential Changes

Work Session Item No. 5
Exhibit A

Potential Changes to Fisheries Regulations 2017-2018

Inland Fisheries

  • Modify harvest regulations for largemouth bass and sunfish on Bedford Boys Ranch Lake (Tarrant County);
  • Modify harvest regulations for smallmouth and largemouth bass on Devils River (Val Verde County).

Coastal Fisheries

  • Modify the minimum size limit for gag grouper;
  • Implement a minimum size limit and daily bag limit for black grouper;
  • Restrict the take of Nassau grouper to catch-and-release only;
  • Modify harvest regulations for great hammerhead sharks.

Law Enforcement

  • Prohibit commercial crabbing north and west of State Highway 146 in Harris County.

Work Session Item No. 6
Presenter: Shawn Gray
Dave Morrison
Ellis Powell

Work Session
2017-2018 Statewide Hunting Proclamation Preview
November 2, 2016

I.       Executive Summary:  This item apprises the Texas Parks and Wildlife (TPW) Commission of potential changes to hunting regulations for the 2017-2018 season.

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

Attachments – 1

  1. Exhibit A – Potential Changes

Work Session Item No. 6
Exhibit A

Potential Changes to Hunting Regulations 2017-2018

Pronghorn

  • Expand the experimental pronghorn season to additional herd management units in the Panhandle.

Turkey

  • Clarify that the season closure for eastern turkey on United States Forest Service lands in Jasper County applies only to the Angelina National Forest;
  • Correct error in spring youth turkey season length.

Migratory Game Bird Regulations

  • Modify migratory game bird regulations as a result of federal action.

Law Enforcement

  • Clarify roadway boundaries for deer and turkey in Val Verde County.

Work Session Item No. 7
Presenter: Cody Jones
Julie Gilmore

Work Session
Marine Dealer, Floating Cabin, and Party Boat Regulations
November 2, 2016

I.       Executive Summary:  This item seeks permission to publish proposed rules governing marine dealer, manufacturer’s, and distributor’s licenses, floating cabin permits, and party boat licenses. The proposed amendments would:

  • Implement new provisions to clarify provisions regarding the department’s refusal to issue or renew a license or permit on the basis of criminal history;
  • Modify the process for review of an agency decision to deny or refuse issuance of marine dealer, floating cabin and party boat licenses and permits; and
  • Reorganize existing provisions where necessary to enhance usability; and
  • Make nonsubstantive, housekeeping-type changes.

II.     Discussion:  Under Parks and Wildlife Code, §31.042, the Texas Parks and Wildlife (TPW) Commission is authorized to promulgate rules regarding dealer’s, distributor’s, and manufacturer’s licenses. Under Parks and Wildlife Code, Chapter 31, Subchapter G, the TPW Commission may adopt rules necessary to regulate party boats. Under Parks and Wildlife Code, Chapter 32, the TPW Commission is required to adopt rules to regulate floating cabins in coastal waters.

Current rules governing marine dealers, floating cabins, and party boats contain various provisions addressing the department’s authority to deny license or permit issuance; however, the standards differ from program to program. Staff has determined that a homogenous standard similar to that employed in other rules governing special permits and licenses (adjusted as necessary for specific programs) for determining if denial of issuance or renewal, including provisions for review of an agency decision, is desirable. Additionally, the rule governing marine dealer, distributors, and manufacturer’s is lengthy and problematic to navigate; therefore, staff has determined that repealing the existing rule and reorganizing it into individual new sections by thematic content will enhance usability, compliance, and enforcement.

Attachments – 1

  1. Exhibit A – Recommended Rule Proposal Text

Work Session Item No. 7
Exhibit A

Recommended Rule Text.

MARINE DEALER, DISTRIBUTORS, AND MANUFACTURERS LICENSE

         §53.110. Definitions.  The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) Applicant — A person or entity who has applied for a new or renewal license. This includes each member of a partnership or association, each officer of a corporation, the owner of a majority of a corporation’s corporate stock, and any agent or employee acting on behalf of any of the aforementioned persons or entities.

                 (2) Consignment — The sale or offer for sale by a person other than the owner under terms of a verbal or written authorization from the owner.

                 (3) Final conviction — A final judgment of guilt, the entering of a plea of guilty or nolo contendere, or the granting of deferred adjudication or pretrial diversion in accordance with Occupations Code, §53.021(d).

                 (4) Licensee — A person or entity who has received a license under this subchapter. This includes each member of a partnership or association, each officer of a corporation, the owner of a majority of a corporation’s corporate stock, and any agent or employee acting on behalf of any of the aforementioned persons or entities.

         §53.111. Applicability. Any person or entity, including a person or entity purporting to be a broker or brokerage house, who acts as an intermediary or assists in the sale, sale on consignment, display for sale, purchase, trade, or transfer of a vessel, motorboat, or outboard motor in exchange for a fee, commission, or other consideration is considered to be engaged in the business of buying, selling, selling on consignment, displaying for sale, or exchanging a vessel for the purposes of this subchapter. Any person or entity, including a person or entity purporting to be a broker or brokerage house, engaged in any activity described above is subject to the provisions of this subchapter.

         §53.112. Application and Issuance.

                 (a) An applicant shall apply for a license as a dealer by submitting a properly completed, department-approved application form, accompanied by the following:

                         (1) the fee prescribed by law for each license requested;

                         (2) photographs clearly showing:

                                  (A) the permanent sign at the location designated in the application as the applicant’s permanent place of business, clearly indicating the name of the business;

                                  (B) the front of the business with public access; and

                                  (C) space sufficient for office, service area (not applicable to floating inventory  or listings), and display of vessels, motorboats, or outboard motors (not applicable to floating inventory or listings);

                         (3) a copy of the Tax Permit issued by the Comptroller under Chapter 151, Tax Code;

                          (4) verification of all assumed name(s), if applicable, in the form of assumed name certificate(s) on file with the Secretary of State or county clerk;

                         (5) a photocopy of the current driver’s license or Department of Public Safety identification of the owner, president or managing partner of the business; and

                         (6) a list of dealer agreements; and

                         (7) if the applicant is to maintain floating inventory or listings at a location other than that designated as the applicant’s permanent place of business, a record of at least five marinas where floating inventory or listings are expected to be displayed. If the applicant contemplates using less than five marinas, then the application shall include an explanatory statement. The record must identify, at a minimum, the name, physical address, and telephone for each marina.

                 (d) An applicant shall apply for a license as a distributor or manufacturer by submitting a properly completed, department-approved application form accompanied by the following:

                         (1) the fee prescribed by law for each license requested;

                         (2) verification of all assumed name(s), if applicable, in the form of assumed name certificate(s) on file with the Secretary of State or county clerk;

                         (3) a complete list of manufacturers represented by a distributorship; and

                         (4) a complete list of distributors, dealers, and representatives for a manufacturer.

                  (e) The department may issue a license under this subchapter if:

                         (1) the applicant submits a complete application form and required attachments; and

                         (2) the applicant signs a department-provided license agreement stating that the applicant agrees to comply with all applicable state laws, including Occupation Code, Chapter 2352, concerning Franchise Agreements, when required.

         §53.113. Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License.

                         (a) The department may refuse to issue or renew a license under this subchapter if:

                                  (1) an applicant is liable to the state under Parks and Wildlife Code §12.301;

                                  (2) an applicant has a final conviction or has been assessed an administrative penalty for a violation of:

                                          (A) Parks and Wildlife Code, Chapter 31, Subchapter A, B, B-1, C, D, or E;

                                          (B) a provision of the Parks and Wildlife Code 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) Chapters 51 or 53 of this title; or

                                          (D) any federal or state law relating to the sale, distribution, financing, registration, or taxing of a vessel, motorboat, or outboard motor; or

                                  (3) the department has evidence that the applicant is acting on behalf of or as a surrogate for another person or entity who has a final conviction or has been assessed an administrative penalty for any violation listed in this subsection.

                         (b) In determining whether to issue or renew a license under this section, the department may consider:

                                  (1) the number of final convictions or administrative penalties;

                                  (2) the seriousness of the conduct on which the final conviction or administrative penalty is based;

                                  (3) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by subsection (a)(2) of this section;

                                  (4) the length of time between the most recent final conviction or administrative penalty and the license application;

                                  (5) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;

                                  (6) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both; and

                                  (7) other mitigating factors.

                         (c) The department shall provide to the applicant a written statement of the reasons for a decision to deny the issuance or renewal of a license.

                         (d) An applicant may request a review of a decision of the department with respect to license issuance or denial. The request for review must be made within 30 days of being notified by the department that the application for a license or license renewal has been denied. The review request must be in writing and addressed to: Manager of Boat Titling, Registration, and Marine Licensing, Texas Parks and Wildlife Department, 4200 Smith School Rd., Austin, TX 78744. If no review request is received within 30 days of the date of the letter notifying the licensee of the department’s intent to refuse issuance or renewal of a license, the decision to deny the issuance or renewal of a license is final.

                                  (1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                                  (2) The department shall conduct the review within 30 days of receipt of the request required by this section, unless another date is established in writing by mutual agreement between the department and the requestor.

                                  (3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with knowledge of department procedures and laws regarding licensing and titling, appointed or approved by the executive director or his or her designee.

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

         §53.114. Suspension or Revocation. The department may suspend or revoke a license under this subchapter as provided by Parks and Wildlife Code, Chapter 12, Subchapter F, if:

                 (1) a licensee has been finally convicted or been assessed an administrative penalty for a violation or condition listed in §53.113(a) of this title (relating to Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License);

                 (2) the licensee was previously a partner, stockholder, director, or officer controlling or managing a partnership, corporation, or store location whose license issued under this subsection was revoked or suspended and the terms of the suspension have not been fulfilled;

                 (3) the department has evidence that the licensee is acting on behalf of or as a surrogate for another person or entity who has a final conviction or has been assessed an administrative penalty for any violation listed in §53.113(a) of this title; or

                 (4) the licensee or an employee of the licensee has obtained, or attempted to obtain, any money, commission, fee, barter, exchange or other compensation by fraud, deception or misrepresentation.

         §53.115. Recordkeeping, Display of License, and Notification Requirements.

                 (a) A licensee shall notify the department in writing within 10 days if there is any change of:

                         (1) ownership;

                          (2) business name;

                         (3) physical location;

                         (4) dealer agreement;

                         (5) distributors, dealers, or representatives; or

                         (6) address or phone information.

                 (b) The licenses issued under this subchapter to dealers must be publicly displayed at all times in the place of business for which the license is issued.

                 (c) A licensee must keep a complete record available for inspection in the place of business relating to all vessels, motorboats, and outboard motors purchased, sold, or displayed for sale for a minimum of 24 months. Content of records must include the:

                         (1) date of purchase;

                         (2) date of sale;

                         (3) hull identification number and/or motor identification number;

                         (4) name and address of person selling to the dealer;

                         (5) name and address of person purchasing from the dealer;

                         (6) name and address of selling dealer or individual if vessel and/or outboard motor is offered for sale by consignment;

                         (7) a copy of the vessel/outboard motor title/registration receipt;

                         (8) copies of any and all documents, forms, and agreements applicable to a particular sale, consignment, listing, transfer of ownership, titling, titling and registration, or documentation through the U.S. Coast Guard, including, but not limited to title applications, work-up sheets, Manufacturer’s Certificates of Origin, titles or photocopies of the front and back of titles, factory invoices, sales contracts, retail installment agreements, buyer’s orders, bills of sale, waivers, or other agreements between the seller and purchaser; and

                         (9) copies of written consignment agreements or power of attorney for vessels, motorboats, or outboard motors.

FLOATING CABINS

         §55.202. Period of Validity; Renewal and Transfer of Permits.

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

                 (c) Permits that are not renewed within 90 days after expiration will become ineligible for renewal and the affected floating cabin will be subject to removal at the permittee’s expense according to the provisions of Parks and Wildlife Code, §32.154. The department shall notify each permittee by certified mail upon determining that a permit has expired and become ineligible for renewal.

                         [(1)] A permittee whose permit has expired and become ineligible for renewal may request a review of the ineligibility status to show why the permit should be renewed. A person seeking a review under this subsection must contact the department within 10 working days after the date that the department issues the notification required by this section.

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

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

                                   [(B) the Director of Law Enforcement (or his or her designee); and]

                                 [(C) the Director of the Coastal Fisheries Division (or his or her designee).]

                          [(3) The decision of the review panel is final.]

                 (d) – (e) (No change.)

         §55.208. Refusal to Renew Permit; Review of Agency Decision to Refuse Permit Renewal.

                 (a) The department may refuse to renew a permit under this subchapter if:

                         (1) an applicant is liable to the state under Parks and Wildlife Code §12.301;

                         (2) an applicant has been finally convicted or assessed an administrative penalty for a violation of:

                                  (A) a provision of the Parks and Wildlife Code that is punishable as a Parks and Wildlife Code:

                                          (i)  Class A or B misdemeanor;

                                          (ii)  state jail felony; or

                                          (iii) felony; or

                                          (iv) a violation of Water Code, §26.121.

                 (b) In determining whether to renew a permit under this section, the department may consider:

                         (1) the number of final convictions or administrative penalties;

                         (2) the seriousness of the conduct on which the final conviction or administrative penalty is based;

                         (3) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by subsection (a)(2) of this section;

                         (4) the length of time between the most recent final conviction or administrative penalty and the application for permit renewal;

                         (5) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;

                         (6) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant; and

                         (7) other mitigating factors.

                 (c) The department shall provide to the applicant a written statement of the reasons for a decision to deny the renewal of a permit.

                 (d) An applicant for a permit renewal may request a review of a decision of the department to refuse permit renewal. If no review request is received within 30 days of the date of the letter notifying the licensee of the department’s intent to refuse renewal of the license, the decision to deny the renewal of a license is final.

                         (1) An applicant seeking review of a decision of the department with respect to permit renewal must request the review within 10 working days of being notified by the department that the application for permit renewal has been denied. The review request must be in writing and addressed to: Marine Enforcement, Texas Parks and Wildlife Department, 4200 Smith School Rd., Austin, TX 78744

                         (2) Within 10 working days of receiving a request for review under this subsection, the department shall establish a date and time for the review.

                         (3) The department shall conduct the review within 30 days of receipt of the request required by this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.

                         (4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with knowledge of department regulation regarding floating cabins, appointed or approved by the executive director, or designee.

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

PARTY BOATS

         §55.404. Party Boat Operator License—General Provisions.

                 (a)-(d) (No change.)

                 (e) Refusal to Issue or Renew License.; Review of Agency Decision to Refuse or Renew License[Denial of license issuance].

                         (1) The department may refuse to issue or renew a license under this subchapter if:

                                  (A) an applicant is liable to the state under Parks and Wildlife Code §12.301;

                                  (B) an applicant has a final conviction or has been assessed an administrative penalty for a violation of:

                                          (i) Parks and Wildlife Code, Chapter 31, involving reckless or negligent behavior, or behavior that placed passengers in peril.

                                          (ii) a provision of the Parks and Wildlife Code that is punishable as a Parks and Wildlife Code:

                                                   (I)  Class A or B misdemeanor;

                                                   (II)  state jail felony; or

                                                   (III) felony;

                                          (v) a violation of Penal Code, Chapter 49 involving the operation of a motorboat;

                                          (vi) a violation of Water Code, §26.121; or

                                          (vii) any federal or state law relating to the sale, distribution, financing, registration, or taxing of a vessel, motorboat, or outboard motor; or

                                  (C) the department has evidence that the applicant is acting on behalf of or as a surrogate for another person or entity who has a final conviction or has been assessed an administrative penalty for any violation listed in this subsection.

                         (2) The department will not issue a party boat operator license to a person who is prohibited from holding an equivalent license in another state.

                         (3) In determining whether to issue or renew a license under this section, the department may consider:

                                  (A) the number of final convictions or administrative penalties;

                                  (B) the seriousness of the conduct on which the final conviction or administrative penalty is based;

                                  (C) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by paragraph (1) of this subsection;

                                  (D) the length of time between the most recent final conviction or administrative penalty and the license application;

                                  (E) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;

                                  (F) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both; and

                                  (G) other mitigating factors.

                         (4) The department shall provide to the applicant a written statement of the reasons for a decision to deny the issuance or renewal of a license.

                         (5) An applicant may request a review of a decision of the department with respect to license issuance or denial. The request for review must be made within 30 days of being notified by the department that the application for a license or license renewal has been denied. The review request must be in writing and addressed to: Marine Enforcement, Texas Parks and Wildlife Department, 4200 Smith School Rd., Austin, TX 78744. If no review request is received within 30 days of the date of the letter notifying the licensee of the department’s intent to refuse issuance or renewal of the license, the decision to deny the issuance or renewal of a license is final.

                                  (A) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                                  (B) The department shall conduct the review within 30 days of receipt of the request required by paragraph (5) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.

                                  (C) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with knowledge in marine regulations, appointed or approved by the executive director or his or her designee.

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

                         [(1) The department will not issue a party boat operator license to any person who has, within the five-year period preceding an application for a party boat operator license, been convicted of:]

                                  [(A) a violation of Penal Code, Chapter 49 involving the operation of a motorboat; or]

                                  [(B) a violation of Parks and Wildlife Code, Chapter 31, involving reckless or negligent behavior, or behavior that placed passengers in peril.]

                                  [(2) The department will not issue a party boat operator license to a person who is prohibited from holding an equivalent license in another state.]


Work Session Item No. 10
Presenter: Ken Kurzawski

Work Session
Shad Collection and Sale Rules – Request Permission to Publish Proposed
Rules in the Texas Register
November 2, 2016

I.       Executive Summary: This item seeks permission to publish modifications to rules governing the harvest and sale of non-game fishes, including rules specific to gizzard and threadfin shad, and rules governing permit issuance and administration. The proposed rules would:

  • Establish special permit provisions for possession and sale of gizzard and threadfin shad taken from public fresh water for personal or commercial uses;
  • Modify permit application and issuance rules for assistants;
  • Establish that permits may have restrictions added as needed to prevent the spread of exotic aquatic species or negative impacts to other aquatic species; and
  • Modify permit categories.

II.     Discussion: Under Parks and Wildlife Code, §67.0041, the Texas Parks and Wildlife Department (TPWD) may issue permits for the taking, possession, propagation, transportation, sale, importation, or export of a nongame species of fish if necessary to properly manage that species.

TPWD currently issues permits for the sale of nongame fishes taken from public waters, including gizzard and threadfin shad. Permittees collect live shad from public reservoirs for sale or as part of management services provided to private pond owners.  Shad are used to increase the abundance of prey fishes in a pond primarily to improve growth and size of largemouth bass. Permits are also issued for shad collected that are sold as live bait or as frozen or prepared bait. Shad are also collected by private landowners for stocking in their private lakes for use as prey. These persons are not required to obtain a permit because no sale is involved.

The proposed rules (located at Exhibit A) are intended to maintain the permit requirement for the collection and sale of shad taken from public waters and to create special permit provisions to be required of persons collecting shad for transport and personal use in private waters or as bait if the total volume of transport containers exceeds 82 quarts, and to allow exemptions for use of shad as bait by recreational anglers and licensed fishing guides.

Attachments – 2

  1. Exhibit A – Rules for Permits to Possess or Sell Nongame Fish Taken from Public Fresh Water
  2. Exhibit B – Fee Rules

Work Session Item No. 10
Exhibit A

PERMITS TO POSSESS OR SELL NONGAME FISH

TAKEN FROM PUBLIC FRESH WATER

         §57.377. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

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

                 (5) Shad—Gizzard and threadfin shad (Dorosoma spp.).

         §57.379. Prohibited Acts. Except as provided [exempted] by this subchapter it is unlawful for any person to:

                 (1) – (5) (No change.)

         §57.380. Permit Application.

                 (a) An applicant for a permit under this subchapter [to sell nongame fish taken from public fresh waters of this state] shall submit a completed application to the department on a form supplied by the department, accompanied by the nonrefundable fee specified in Chapter 53 of this title (relating to Finance).

                 (b) The application must be received by the department at least 30 days before the proposed activity.

                 (c) An application may designate no more than eight persons, in addition to the applicant, to assist in conducting permitted activities.

         §57.381. Permit Specifications and Requirements.

                 (a) A permit issued under this subchapter [by the department to sell nongame fish taken from public fresh water] shall specify:

                         (1) The name, telephone number and physical address of the permittee;

                         (2) The water body where the activity is permitted;

                         (3) The nongame fish species for which take and/or sale is allowed; and

                         (4) The types and number of devices which may be used to take nongame fish.

                 (b) A permit issued under this subchapter [these rules] is not transferable or assignable.

                 (c) At all times that a person designated as an assistant is engaged in a permitted activity, that person must be:

                         (1) On board the same vessel with the permit holder; or

                         (2) Within line-of-sight of the permit holder if not on a vessel [A permit may list no more than two persons, in addition to the permittee, who may assist in conducting the permitted activity.]

                 (d) – (g) (No change.)

                 (h) All permits issued under this subchapter [these rules] expire on December 31 of the year issued.

         §57.384. Refusal to Issue; Review of Agency Decision to Refuse Issuance.

                 (a) The department may refuse to authorize any prospective activity on any water body or impose restrictions on permitted species, water bodies, devices, or live transfer if the department determines that: [The department may refuse permit issuance or renewal if:]

                         (1) The prospective take of nongame fish is [determined by the department to be] detrimental to the target species, species listed as endangered or threatened, or any other aquatic species;

                         (2) The prospective take of nongame fish is likely to increase the risk of transfer or spread of harmful or potentially harmful exotic fish or shellfish.

                         (3)[(2)] the prospective take of nongame fish cannot be accomplished in a manner consistent with the management goals and objectives of the department;

                         (4)[(3)] the applicant or assistant(s) seeking renewal is not in compliance with provisions of this subchapter; or

                         (5)[(4)] the applicant or assistant(s) have been:

                                  (A) Convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code or a regulation of the commission; or

                                  (B) convicted, pleaded guilty or nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 — 3378 (the Lacey Act); or

                                  (C) The department has evidence that the applicant is acting on behalf of or as a surrogate for another person not eligible for a permit under this subsection.

                 (b) (No change.)

         §57.385. Special Provisions – Shad.

                 (1) No person may sell, offer for sale, possess for purposes of sale, or exchange for anything of value shad taken from public fresh water unless the person possesses:

                             (A) A valid permit issued by the department under this subchapter specifically authorizing that activity; or

                            (B) A valid fishing guide license issued by the department and the shad are being provided to persons engaged in fishing as part of the guide’s services.

                 (2) No person may collect and possess shad taken from public fresh water without a permit issued under this section unless person possesses a valid recreational fishing license issued by the department and the shad:

                         (A) Are not sold or exchanged for anything of value; and

                         (B) Are possessed:

                                  (i) in a container or containers that in the aggregate constitute 82 quarts or less in volume;

                                 (ii) on the waterbody from which the shad were taken and are used as bait; or

                                                (iii) by a licensed fishing guide to be provided to persons engaged in fishing as part of the guide’s services regardless of the container volume.


Work Session Item No. 10
Exhibit B

FEES FOR NONGAME FISH TAKEN FROM PUBLIC FRESH WATER

         §53.12. Commercial Fishing Licenses and Tags.

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

                 (c) General, finfish, menhaden, mussel, clam, and miscellaneous licenses.

                          (1) Licenses and permits.

                                  (A) – (J) (No change.)

                                  (K) Mussel dredge fee — $36; and

                                  (L) Permit to possess or sell non-game fish — $60;

                                    (d) – (e) (No change.)


Work Session Item No. 11
Presenter: Tiffany Hopper

Work Session
Briefing on Flounder and Trout
November 2, 2016

I.       Executive Summary: Staff will brief the Texas Parks and Wildlife (TPW) Commission on the status and trends of flounder and spotted seatrout.

II.     Discussion: In FY 2013, the recreational bag limit for flounder was reduced from 5 fish to 2 fish and gear type was restricted to only hook and line during the month of November.  The following year (FY 2014) the 2 fish bag limit was extended into the first two weeks of December, but during these two week any legal gear type was authorized.  Also in FY 2014 the 5 fish bag limit that had been in place for the lower Laguna Madre was extended up to, but not including Galveston Bay.

Given the timeframe since the implementation of these regulations, staff will update the TPW Commission on biological trend data from Texas Parks and Wildlife Department’s fisheries dependent and independent sampling programs.


Work Session Item No. 12
Presenter: Melissa Parker

Work Session
Briefing on San Marcos River Task Force
November 2, 2016

I.       Executive Summary: Staff will provide a summary of the San Marcos River Task Force Report and findings to the Texas Parks and Wildlife (TPW) Commission.

II.     Discussion: The San Marcos River Task Force was convened by the TPW Commission as a result of public testimony at the August 2014 and 2015 Annual Public Hearings.  TPW Commissioner Bill Jones chaired this task force. Three meetings were held to gather information and to provide information and perspective regarding recreational activity, specifically tubing, occurring on an area of the San Marcos River.  The following charge was provided to the task force:

“To bring together a broad spectrum of stakeholders to provide perspective to the TPWD and the TPW Commission regarding the issues associated with recreational river use on the San Marcos River from the bridge at County Road 101 to Scull Crossing.  This 3.6 mile river segment flows through Hays, Caldwell, and Guadalupe Counties.  Specifically, the task force is charged with studying and making recommendations concerning how to control illegal behavior, improve public safety, safeguard private property rights, and conserve environmental quality and the natural state in this segment of the San Marcos River.”


Work Session Item No. 15
Presenter: Ted Hollingsworth

Work Session
Acquisition of Land – Blanco County
Approximately 300 Acres at Pedernales Falls State Park
Request Permission to begin Public Notice and Input Process
November 2, 2016

I.       Executive Summary: Staff of Texas Parks and Wildlife Department (TPWD) is negotiating a purchase of approximately 300 acres of land on the Pedernales River adjacent to and overlooking Pedernales Falls State Park from a willing seller.

II.     Discussion: Pedernales Falls State Park was established in 1970 with an initial purchase of 4,860 acres. Boasting over 5 miles of frontage on the Pedernales River, the park today encompasses 5,212 acres, including diverse natural and recreational resources, many miles of hiking trails, beautiful Hill Country vistas, limestone bluffs, quiet pools and waterfalls, and habitat for the endangered Golden Cheeked Warbler. TPWD does not own both banks of the river in critical locations overlooking the park’s namesake falls, and staff is concerned about the potential for development that would compromise important viewsheds. Staff has met with a number of the park’s neighbors to discuss these concerns and explore opportunities for mitigating future risks to the viewshed and the visitor experience. One of these neighbors is willing to sell land in a strategic location, realizing the long-term goal of protecting the viewshed and aesthetic integrity of a critical reach of the river adjacent to the falls.

III.    Recommendation:  Staff request permission to begin the public notice and input process.

Attachments – 3

  1. Exhibit A – Location Map
  2. Exhibit B – Vicinity Map
  3. Exhibit C – Site Map

Work Session Item No. 15
Exhibit A

Location Map for Pedernales Falls State Park in Blanco County

Location Map for Pedernales Falls State Park in Blanco County


Work Session Item No. 15
Exhibit B

Vicinity Map for Pedernales Falls State Park 30 Miles West of Austin

Vicinity Map for Pedernales Falls State Park 30 Miles West of Austin


Work Session Item No. 15
Exhibit C

Site Map Showing Location of Subject 300-Acre Tract

Site Map Showing Location of Subject 300-Acre Tract


Work Session Item No. 18
Presenter: Ann Bright

(Executive Session Only)
Update on Regulatory Litigation
November 2, 2016

I.       Executive Summary:  Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Texas Parks and Wildlife (TPW) Commission regarding pending litigation impacting TPWD’s regulatory authority, specifically, the following pending lawsuits:

  • Ken Bailey and Bradly Peterson v. Carter Smith, Executive Director, Clayton Wolf, Wildlife Division Director, Mitch Lockwood, Big Game Program Director and Texas Parks and Wildlife Department, Cause No. D-1-GN-15-004391, in the District Court of Travis County, Texas.
  • State of Texas v. Chambers-Liberty Counties Navigation District, Each in his Official Capacity: Terry Haltom as CLCND Commissioner, Allen Herrington as CLCND Commissioner, Kenn Coleman as CLCND Commissioner, Ken Mitchell a CLCND Commissioner, and Dave Wilcox as CLCND Commissioner, and Sustainable Texas Oyster Resources Management, LLC., Cause No. D-1-GN-15-003093, in Travis County District Court.

Work Session Item No. 19
Presenter: Chairman T. Dan Friedkin

(Executive Session Only)
Personnel Matters
November 2, 2016

I.       Executive Summary: 

  • Annual Performance Evaluation of Texas Parks and Wildlife Department Executive Director