Work Session Item No. 1
Presenter: Carter Smith

Work Session
Update on TPWD Progress in Implementing the TPWD
Land and Water Resources Conservation and Recreation Plan
March 21, 2018

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

II.     Discussion: In 2001, the 77th Texas Legislature directed that TPWD develop a Land and Water Resources Conservation and Recreation Plan (Tex. Parks & Wildlife Code §11.104). In 2002, the Commission adopted the first Plan. A revised Plan was adopted by the Commission in January 2005. In November 2009, the Commission approved a new Plan, effective January 1, 2010, that included broad input from stakeholders and the general public.  Minor revisions continue to be made to the Plan. The 2015 version of the Plan is available on the TPWD 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: Mike Jensen

Work Session
Financial Overview
March 21, 2018

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

II.     Discussion: Staff will update the Texas Parks and Wildlife Commission on state park, boat registration/titling, and license fee revenues collected by TPWD for Fiscal Year (FY) 2018 and will summarize recent budget adjustments for FY 2018.

Work Session Item No. 3
Presenter: Cindy Hancock

Work Session
Internal Audit Update
March 21, 2018

I.      Executive Summary:  Staff will provide a status report on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2018 Internal Audit Plan and ongoing or completed external audits.

II.      Discussion:  Staff will present a status report on the TPWD FY 2018 Internal Audit Plan as well as external audits that have been completed or are ongoing.

Work Session Item No. 4
Presenter: Ann Bright

Work Session
Advisory Committee Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 21, 2018

I.      Executive Summary: Texas Parks and Wildlife Department (TPWD) staff is seeking permission to publish a proposed rule amendment to extend the duration of TPWD advisory committees.

II.     Discussion: Texas Parks and Wildlife Code Section 11.0162 authorizes the Chairman of the Texas Parks and Wildlife Commission (Commission) to “appoint committees to advise the Commission on issues under its jurisdiction.” Texas Government Code Chapter 2110 requires that rules be adopted regarding each state agency advisory committee. Unless otherwise provided by specific statute, the rules must: (1) state the purpose of the committee; (2) describe the manner in which the committee will report to the agency; and (3) establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute. Other requirements for advisory committees include an annual evaluation, a membership limit of 24 members, balanced membership representation, the selection of a presiding officer by members and a four-year duration unless otherwise provided by rule.

The advisory committees listed below will expire October 1, 2018 unless extended by rule. The proposed rule extends the duration of these advisory committees to July 1, 2022. The proposal also realigns the terms of current advisory committee members to facilitate the beginning of new member terms on July 1, 2018.

• White-tailed Deer Advisory Committee
• Migratory Game Bird Advisory Committee
• Upland Game Bird Advisory Committee
• Private Lands Advisory Committee
• Bighorn Sheep Advisory Committee
• Wildlife Diversity Advisory Committee
• Freshwater Fisheries Advisory Committee
• State Parks Advisory Committee
• Coastal Resources Advisory Committee

Work Session Item No. 4
Exhibit A

ADVISORY COMMITTEE RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes amendments to §§51.601, 51.606-51.611, 51.631, 51.671, and 51.672, concerning advisory committees. The proposed amendments would establish an expiration date of July 1, 2022 for the following existing advisory committees: White-tailed Deer Advisory Committee (WTDAC), Migratory Game Bird Advisory Committee (MGBAC), Upland Game Bird Advisory Committee (UGBAC), Private Lands Advisory Committee (PLAC), Bighorn Sheep Advisory Committee (BSAC), Wildlife Diversity Advisory Committee (WDAC), Freshwater Fisheries Advisory Committee (FFAC), State Parks Advisory Committee (SPAC), and Coastal Resources Advisory Committee (CRAC).  The proposal also realigns the terms of current advisory committee members to facilitate the beginning of new terms on July 1, 2018.

        Unless extended, these advisory committees will expire October 1, 2018.  The department believes that these advisory committees continue to perform a valuable service for the department.  Therefore, the department wishes to continue these advisory committees.

        Parks and Wildlife Code, §11.0162, authorizes the Chairman of the Texas Parks and Wildlife Commission (the Commission) to "appoint committees to advise the commission on issues under its jurisdiction." Government Code, Chapter 2110, requires that rules be adopted regarding each state agency advisory committee. Unless otherwise provided by specific statute, the rules must (1) state the purpose of the committee; (2) describe the manner in which the committee will report to the agency; and (3) establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute.

2. Fiscal Note.

        Ann Bright, Chief Operating Officer, has determined that for each of the first five years the amendments 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 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 to ensure proper management and effective use of department advisory committees.

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

        (C) The department has determined that small or micro-businesses will not be affected by the proposed rules. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

        (D) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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

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

        (G) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (H) In compliance with the requirements of Government Code, §2001.0241, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

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

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

                 (4) not affect the amount of any fee;

                 (5) create a new regulation;

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

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

                 (8) neither positively nor negatively affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rules may be submitted to Ann Bright, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8558; or ann.bright@tpwd.state.tx.us.

5. Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §11.0162 and Government Code, §2110.005 and §2110.008.

        The proposed amendments affect Parks and Wildlife Code, §11.0162.

6. Rule Text.

        §51.601. General Requirements

                 (a) – (e) [No change]

                 (f) Term of members. Unless expressly provided in this subchapter or other law, the term of advisory committee members shall be as follows:

                         (1) [the] The term of each member of an agency advisory committee who was appointed prior to January 1, 2018, will expire on July 1, 2018 [serve a term of four years].

                         (2) The term of each member of an agency advisory committee member appointed on or after January 1, 2018 will expire July 1, 2022. [The terms may be staggered. Members’ terms will expire at the end of four years or upon the termination of the advisory committee, whichever is earlier. Members may be reappointed. Members serve at the will of the chairman and may be removed at any time by the chairman.]

                 (g) – (m) [No change]

        §51.606. White-tailed Deer Advisory Committee (WTDAC).

                 (a) The WTDAC is created to advise the department on issues relevant to white-tailed deer and all programs involving white-tailed deer management in Texas, including problems, options, goals and planning regarding white-tailed deer.

                 (b) The WTDAC membership shall represent, at a minimum:

                         (1) the ecological range of white-tailed deer in Texas;

                         (2) landowners;

                         (3) conservation and management organizations; and

                         (4) hunters.

                 (c) The WTDAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The WTDAC shall expire on July October 1, 2022[2018].

        §51.607. Migratory Game Bird Advisory Committee (MGBAC).

                 (a) The MGBAC is created to advise the department regarding the following :

                         (1) the management, research and habitat acquisition needs of migratory game birds.

                         (2) development and implementation of migratory game bird regulations, research, and management.

                         (3) education and communications with various constituent groups and individuals interested in migratory game birds.

                 (b) The MGBAC consists of members selected from members of the general public with an interest migratory game bird management.

                 (c) The MGBAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The MGBAB shall expire on July [October] 1, 2022[2018].

        §51.608. Upland Game Bird Advisory Committee (UGBAC)

                 (a) The MGBAC is created to advise the department on matters pertaining to the following:

                         (1) regulation, management, research, and funding needs regarding upland game bird species that occur in Texas;

                         (2) management, research and habitat acquisition needs of upland game birds; and

                         (3) education and communications with various constituent groups and individuals interested in upland game bird species of Texas.

                 (b) The composition of the UGBAC shall represent:

                         (1) the ecological range of upland game bird species in Texas;

                         (2) landowners;

                         (3) conservation organizations;

                         (4) representatives of appropriate state and federal agencies; and

                         (5) upland game bird hunters.

                 (c) The UGBAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The UGBAC shall expire on July [October] 1, 2022[2018].

        §51.609. Private Lands Advisory Committee (PLAC).

                 (a) The PLAC is created to advise the department on all matters pertaining to wildlife programs, management, and research on private lands in Texas, including the following:

                         (1) the development of an ecosystem approach to management of habitats;

                         (2) financing options for private lands programs;

                         (3) development and dissemination of information regarding management and research of wildlife habitat and ecosystems; and

                         (4) any other matters at the request of the chairman.

                 (b) The PLAC shall be composed of not fewer than 5 members representing private landowners from the various ecological regions of the state.

                 (c) The PLAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The PLAC shall expire on July [October] 1, 2022[2018].

        §51.610. Bighorn Sheep Advisory Committee (BSAC).

                 (a) The BSAC is created to advise the department about problems, alternatives, solutions, and goals regarding the restoration of desert bighorn sheep to Texas.

                 (b) The composition of the BSAC will be comprised of the following:

                         (1) at least two members of the Texas Bighorn Society;

                         (2) at least two persons who own land in the historic range of desert bighorn sheep;

                         (3) university faculty and staff as necessary and appropriate; and

                         (4) representatives of government agencies as necessary and appropriate.

                 (c) The BSAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The BSAC shall expire on July [October] 1, 2022[2018].

        §51.611. Wildlife Diversity Advisory Committee (WDAC).

                 (a) The WDAC shall advise the department on matters pertaining to management, research, and outreach activities related to nongame and rare species in the State of Texas, including the following:

                         (1) development and implementation of the wildlife diversity related projects, grants, and policy;

                         (2) wildlife diversity conservation and regulations;

                         (3) education and communications with various constituent groups and individuals interested in wildlife diversity in the state of Texas.

                 (b) The composition of the WDAC shall represent landowner and conservation organizations in Texas.

                 (c) The WDAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The WDAC shall expire on July [October] 1, 2022[2018].

        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, §11.0162 and Government Code, §2110.005 and §2110.008.

        The proposed amendment affects Parks and Wildlife Code, §11.0162.

        §51.631. Freshwater Fisheries Advisory Committee (FFAC).

                 (a) The FFAC is created for the purpose of advising the department regarding all matters pertaining to freshwater fisheries management and research in the state. The FFAC shall also advise the department regarding the following:

                         (1) the development and implementation of freshwater fisheries management programs throughout the state;

                         (2) the development of management and research priorities;

                         (3) the development of priorities for expenditures of angler financed programs; and

                         (4) the dissemination of information regarding freshwater fisheries management and research.

                 (b) The FFAC shall consist of individuals representing the state’s freshwater angling public, the aquaculture industry, the freshwater fishing industry, fisheries educators, and conservation groups. Each member shall serve two-year or four-year terms as designated by the chairman, and terms may be staggered to ensure continuity.

                 (c) The FFAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The FFAC shall expire on July [October] 1, 2022[2018].

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

        Issued in Austin, Texas, on

        The amendments are proposed under the authority of Parks and Wildlife Code, §11.0162 and Government Code, §2110.005 and §2110.008.

        The proposed amendments affect Parks and Wildlife Code, §11.0162.

        §51.671. State Parks Advisory Committee (SPAC).

                 (a) The SPAC is appointed to advise the chairman and the commission regarding state parks.

                 (b) The SPAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (c) The SPAC shall expire on July [October] 1, 2022[2018].

        §51.672. Coastal Resources Advisory Committee (CRAC)

                 (a) The CRAC is created to advise the chairman and the commission on issues that cross fishery and geographic boundaries on the coast of Texas.

                 (b) The CRAC shall consist of members in the public who have an interest in coastal resources issues.

                 (c) The CRAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

                 (d) The CRAC shall expire on July [October] 1, 2022[2018].

                 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. 9
Presenter: Jonathan (Jon) Warner

Work Session
Alligator Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 21, 2018

I.      Executive Summary: This item seeks permission to publish proposed amendments to the Alligator Proclamation in the Texas Register for public comment. The proposed amendments would affect rules governing nuisance alligator control as follows:

• Removal of the nuisance alligator control permit application deadline;
• prohibition of media dissemination (including social media) of nuisance alligator control activities;
• Creation of subpermittee status;
• Implementation of notification requirement to allow activity tracking/monitoring in real time; and
• Requirement for prior written department approval for removal of alligators over 10 feet in length.  

II.      Discussion:  Under Texas Parks and Wildlife Code Chapter 65, the Texas Parks and Wildlife Commission (Commission) may regulate by proclamation the taking, possession, transportation, and sale of alligators, to include the control of nuisance alligators. Over the last 20 years, once-imperiled alligator populations in Texas have rebounded spectacularly; however, increased suburban, exurban, and industrial development in coastal counties, particularly along the mid- and upper coast, has resulted in increasing numbers of nuisance alligator complaints in areas where habitats and development intersect or overlap. The resultant commitment of Texas Parks and Wildlife Department (TPWD) staff time was untenable; thus, the Commission in 2012 adopted rules to implement a new nuisance alligator control program. Since 2012, TPWD Wildlife Division and Law Enforcement Division staff have monitored the program’s effectiveness and noted some areas in need of additional regulatory refinement to enhance program effectiveness and efficiency.

Work Session Item No. 9
Exhibit A

ALLIGATOR PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §65.352 and §65.363, concerning the Alligator Proclamation.

        The proposed amendment to §65.352, concerning Definitions, would define “subpermittee” as “a person who is registered with the department to assist a permittee in performing nuisance alligator control activities.” The proposed amendment to §65.363 would authorize permittees to utilize assistants to help perform nuisance alligator control activities and set forth various provisions regarding the registration and supervision of such persons. Thus, a definition is necessary to establish a regulatory identity for such persons.

        The proposed amendment to §65.363, concerning Nuisance Alligator Control, would consist of several components.

        The proposed amendment to subsection (a) would allow permittees to designate subpermittees to assist the permittee in nuisance alligator control activities. The amendment as proposed would require subpermittees to be approved by the department, provide for an application process, require permittees to directly supervise all nuisance control activities conducted by a subpermittees, and stipulate that permittees possess the subpermittee authorization issued by the department on their person at all times that a subpermittees is engaged in nuisance alligator control activities. The department agrees in principle that the nature of nuisance alligator control makes it convenient and in some cases necessary for a nuisance control hunter to utilize assistants. However, because alligators are a public resource that the department is charged with managing and conserving (as well as an export commodity subject to federal and international laws governing trade in endangered species and lookalike species), it is necessary to ensure that subpermittees are appropriately vetted and supervised.  Therefore, the proposed amendment would allow the use of subpermittees, subject to department approval. The proposed amendment would allow the department to deny subpermittee authorization to persons who have been convicted of, pleaded nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapter C, Parks and Wildlife Code, Chapter 65; a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; a violation of Parks and Wildlife Code, §63.002; or 16 U.S.C. §§3371-3378 (the Lacey Act). Under the current rule, the department may refuse issuance of a nuisance alligator control permit on the basis of a violation listed above. The department promulgated the current provision because the department believes that a person should not be allowed to engage in an activity involving live wildlife resources, particularly for commercial gain, if the person has engaged in prior serious criminal behavior of conservation laws. The purpose of the provision is to prevent persons who have been proven to exhibit disregard for statutes and regulations governing wildlife and fisheries from participating in nuisance alligator control activities. The proposed amendment would extend the same standard to encompass subpermittees.

        The department notes that it does not intend for a conviction or administrative penalty to be an automatic bar to obtaining subpermittee authorization. The factors that may be considered by the department in determining whether to deny subpermittee authorization based on a conviction or deferred adjudication would include the seriousness of the offense, the number of offenses, the existence or absences of a pattern of offenses, the length of time between the offense and the permit application, and any other pertinent factors.

        The proposed amendment to subsection (a) also would require subpermittees to be directly supervised by the permittee at all times that a subpermittee is engaged in permitted activities, which is necessary to ensure that nuisance alligator control activities are performed correctly and lawfully. Finally, the proposed amendment to subsection (a) would require the department’s authorization for the subpermittee to be maintained on the person of the permittee during permitted activities, which is necessary to facilitate prompt on-site verification of the status of anyone purporting to be a subpermittee.

        The proposed amendment would eliminate current subsection (b), which establishes a deadline for permit applications. The department has determined that eliminating the application deadline would allow for additional prospective nuisance alligator control hunters to be permitted at times when nuisance control calls are at high volumes or there is a shortage of nuisance control hunters available.

        The proposed amendment would alter subsection (d) by implementing a more structured approach to nuisance control activities, prohibit the dissemination of filmed or taped alligator nuisance control activities by permittees, and require explicit department approval on a case-by-case basis for the capture or killing of alligators in excess of 10 feet in length.

        Under current rule, a nuisance control hunter may contract directly with a landowner (or authorized agent), political subdivision, governmental entity, or property owner’s association for the removal of nuisance alligators. The current rules were promulgated in 2011 in response to a steadily rising number of nuisance alligator complaints. The department intended for nuisance control hunters to determine, in any given instance, whether or not an alligator was indeed a nuisance as defined §65.352 (“an alligator that is depredating or a threat to human health or safety”) and then proceed accordingly. In practice, however, the department has discovered that this approach, because it is asystematic, can lead to confusion and perhaps misunderstanding. Therefore, the proposed amendment would require nuisance control hunters, prior to engaging in permitted activities, to contact the department via the La Porte Communications Center to receive a control number for each nuisance alligator that the nuisance control hunter seeks to remove. In this way, the department has a method for tracking exactly when and where nuisance control activities are taking place, which allows the department the ability to selectively monitor nuisance alligator control activities and ensure compliance with federal tagging requirements for crocodilian species.

        The proposed amendment to subsection (d) also would prohibit the photography, filming, videotaping, or digital recording of nuisance alligator control activities for the purpose of  making movies, commercials, or for use in commercial ventures or the use of such recordings for commercial entertainment (including via social media) or for the representation, promotion, or endorsement of any business, company, corporation, organization, product, merchandise, goods, services, meeting, fair, or exhibition Capturing alligators can be a high-risk activity that demands the full attention of the permittee for the personal safety of the permittee and any assistants, persons who might be in proximity, and for the safe and ethical handling of the animal. Filming, photography, “livestreaming” to social media, etc. can pressure or otherwise distract a permittee from quickly, professionally, and successfully capturing, killing and/or removing a nuisance alligator from an area. Additionally, the department believes that making potentially dangerous wildlife resources the subject of sensationalized media presentations is suggestive and creates the impression that nuisance alligator control is a sport or recreational activity, which it is not. The department does realize that from time to time it is possible that images of nuisance alligator control activities could be useful for educational, research, or public information purposes; thus, the proposed amendment would allow public dissemination of such images only with the prior written authorization of the department.

        Finally, the proposed amendment would require written authorization from the department on a case-by-case basis for the capture or killing of alligators greater than 10 feet in length. The justification of this amendment is twofold. First, large alligators are critical components of aquatic ecosystems. These individuals (usually males) are apex predators that directly impact the social and breeding structures, home-ranges, and population densities of alligator populations across Texas. Requiring additional confirmation that large alligators are verified nuisance animals before their removal from the environment is a safeguard for ensuring that alligators remain a sustainable natural resource in Texas. Second, large alligators are economically valuable as live attractions or when sold as hides or parts. Similar to other “trophy” animals, these animals are also highly valuable to hunters who seek to legally harvest large alligators during the Texas alligator hunting season. During the past year the department received several dozen complaints from the public that large alligators were being captured by nuisance alligator control hunters not because the alligators were legitimate nuisances but solely for their value as desirable trophy animals.

2. Fiscal Note.

        Jonathan Warner, Alligator Program Leader, 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 proposed amendments.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the control of nuisance alligators and protection of alligator resources in Texas.

        (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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community. 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 Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

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

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

        (G) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

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

                 (1) neither create nor eliminate a government program;

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

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

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) expand, limit, or repeal an existing regulation (creation of subpermittee status);

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

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

4. Request for Public Comment.

Work Session Item No. 10
Presenter: Meredith Longoria

Work Session
Commercial Turtle Harvest Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 21, 2018

I.      Executive Summary: This item seeks permission to publish proposed amendments to rules governing the commercial collection of nongame species in the Texas Register for public comment. The proposed amendments would prohibit the commercial collection of four species of freshwater turtles: common snapping turtle, red-eared slider, smooth softshell, and spiny softshell.

II.     Discussion: Under Texas Parks and Wildlife Code, Chapter 67, the Texas Parks and Wildlife Department (TPWD) is required to develop and administer management programs to ensure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully, and to conduct ongoing investigations of nongame fish and wildlife to develop information on populations, distribution, habitat needs, limiting factors, and any other biological or ecological data to determine appropriate management and regulatory information.

On October 3, 2017, TPWD received a petition for rulemaking requesting that the Texas Parks and Wildlife Commission prohibit the unlimited commercial collection of the four species of freshwater turtles mentioned above. The petitioners state that continued commercial harvest of those species is unsustainable.

Staff reviewed the petitioners’ evidence and arguments as well as TPWD data and scientific literature and have concluded that there is sufficient scientific justification at this time to prohibit the commercial collection of the common snapping turtle, red-eared slider, smooth softshell, and spiny softshell.

Work Session Item No. 10
Exhibit A

COMMERCIAL NONGAME PERMIT RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §65.328 and §65.331, concerning Commercial Nongame Permits. The proposed amendments would, collectively, prohibit the commercial take of four species of freshwater turtles in Texas.

        The department received a petition for rulemaking in 2017 requesting the prohibition of unlimited commercial collection of four species of freshwater turtles (common snapper, red-eared slider, smooth softshell, and spiny softshell). Department staff reviewed the petitioners’ evidence and arguments as well as department data and scientific literature and have concluded that there is sufficient scientific justification to prohibit the commercial collection of all four species.

        Under Parks and Wildlife Code, Chapter 67, “nongame wildlife” is defined as those species of vertebrate and invertebrate wildlife indigenous to Texas that are not classified as game animals, game birds, game fish, fur-bearing animals, endangered species, alligators, marine penaeid shrimp, or oysters. Chapter 67 requires the commission to “establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species,” and authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species, and to charge a fee for such permits. In 1999, the Parks and Wildlife Commission adopted the first regulations expressly intended to manage nongame wildlife in the state. In 2007, the commission, based on data reported to and information collected by the department, determined that additional protective measures were needed for nongame species and adopted rules that, among other things, prohibited the commercial take of all species of turtles in public waters and on public lands, and all species of turtles other than common snapping turtle, the red-eared slider, smooth softshell, and spiny softshell on private lands and in private waters.

        Nongame species comprise over 90 percent of the wildlife species that occur in Texas. The department conducts ongoing research on many nongame species, and monitors research conducted by others. Among the nongame species of greatest concern are Chelonian species (turtles).  Because of factors such as delayed sexual maturity, long lifespans, and low reproductive and survival rates, turtles are highly sensitive to population alterations, especially in older age classes. Long lifespans, long generation times, and relatively slow growth may give the appearance that populations are stable, even after recruitment has ceased or populations reach levels below which recovery is possible. Impacts to turtle populations, such as the loss of important nesting areas or unsustainable mortality of adults, may remain undetectable until populations reach critical levels or become extirpated. Known limiting factors such as water pollution, road mortality, and habitat loss are important components in turtle declines, but commercial collecting efforts in the wild intensify the impact of those threats by removing large numbers of adults and older juveniles from wild populations. The collection for food markets has devastated turtle populations in Asia, the destination of the bulk of turtles commercially collected in Texas. Analysis of turtle population demographics consistently showed skewing to the adult age categories – the mature specimens most sought by commercial collectors for use as food product. This characteristic reflects the natural history of turtle species and their strong dependency on adult survivors to offset high mortality rates in eggs and juvenile categories. This characteristic alone makes it unlikely that populations can remain stable when high numbers of adults and older juveniles are steadily removed from a population.

        Analysis of collection and sales data from commercial collectors indicates little to no recent trade in common snapping turtles, spiny softshell turtle, or smooth softshell turtles, which suggests that local populations of those species are no longer abundant enough to support market exploitation or have been exploited to the point that populations have become unstable. An additional concern is similarity of appearance. Failure to discriminate among similar species is a substantial threat to populations of rare freshwater turtle species. Similarity of appearance between the common snapping turtle and alligator snapping turtle and among the red-eared slider and western chicken turtle, Big Bend slider, Rio Grande cooter, and Cagle’s map turtle is a serious concern in the face of mounting threats to these species. The alligator snapping turtle (Macrochelys temminckii), western chicken turtle (Deirochelys reticularia miaria), and Rio Grande cooter (Pseudemys gorzugi) have been petitioned for listing by the federal government under the Endangered Species Act, the Big Bend slider (Trachemys gaigeae) is a Species of Greatest Conservation Need (endemic to the Rio Grande River watershed) and the Cagle’s map turtle (Graptemys caglei) is the rarest map turtle species in the world, with a range that is restricted to a single stretch of the Guadalupe River. Accidental removal of even a small number of adults from rare turtle populations could have profound implications for long-term survival and persistence. Therefore, by prohibiting the commercial collection of all turtle species, the threat of negative population impacts as a result of similarity of appearance is mitigated.

        Literature Reviewed.

        In developing the rules as adopted, the department reviewed and considered the following scientific publications:

            Bailey, K. A., and C. Guyer. 1998. Demography and population status of the flattened musk turtle, Sternothrus depressus, in the Black Warrior river Basin of Alabama. Chelonian Conservation and Biology 3(1): 77-83.

Bailey, Lindley A., et al. 2008. Minimal Genetic Structure in the Rio Grande Cooter (Pseudemys Gorzugi). The Southwestern Naturalist, vol. 53, no. 3, 2008, pp. 406–411. JSTOR, JSTOR, www.jstor.org/stable/20424947.

Work Session Item No. 11
Presenter: Mitch Lockwood

Work Session
Chronic Wasting Disease Detection and Response Rules
Facility Location Information Requirements
Request Permission to Publish Proposed Changes in the Texas Register
March 21, 2018

I.      Executive Summary:  This item seeks permission to publish in the Texas Register for public comment proposed amendments to rules implementing the Texas Parks and Wildlife Department’s (TPWD) chronic wasting disease (CWD) management strategies. The proposed amendments would require parties to the transfer of deer under TPWD permit programs to submit a georeferenced map (a map containing spatial data such as latitude/longitude or Universal Transverse Mercator coordinates) for facilities required to be registered with TPWD as a condition of moving or receiving deer under various TPWD-issued permits.

II.     Discussion: TPWD regulations at 31 Texas Administrative Code Chapter 65, Subchapter B, use various statutory authorities granted to the Texas Parks and Wildlife Commission (Commission) under the Texas Parks and Wildlife Code to provide a regulatory universe for monitoring CWD and managing it when and where it is detected or discovered in this state. Of critical importance in this effort is precise geographical information concerning locations where white-tailed deer and mule deer are held or transferred, which enables TPWD to quickly and accurately characterize the epidemiological scope and significance of a CWD discovery.

TPWD staff has determined that it is prudent to require all facility registrations (deer breeding facilities and associated transfer destinations, deer management permit facilities, and sites associated with trap, transport, and transplant permits, and trap, transport, and process permits) to submit a georeferenced map delineating the exact boundaries of each facility. This would allow TPWD to more quickly and effectively respond to CWD detections, promote efficiency in administrative processes, enhance enforcement of regulations, and prevent attempts to circumvent CWD testing requirements.

Work Session Item No. 11
Exhibit A

DISEASE DETECTION AND RESPONSE RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§65.90, 65.91, 65.95, and 65.97 concerning Chronic Wasting Disease—Movement of Deer. The proposed amendments would require facilities required to be registered with the department to receive white-tailed or mule deer under department-issued permits to be described by precise geospatial information regarding the locations where such deer are received.

        Chronic wasting disease (CWD) is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

        Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either farmed or free-ranging cervid populations.

        CWD has been discovered in multiple locations in Texas, in both captive and free-ranging populations of native deer, which the department believes constitutes an existential threat to those resources, as well as the economies dependent upon them. In response, the department has engaged in numerous rulemakings in recent years to protect free-ranging and captive cervid populations from the spread of CWD. A crucial component of that effort is the monitoring of free-ranging deer that are trapped and translocated under department-issued permits and captive-bred deer that are introduced to, transferred among, and released from captive herds under department-issued permits. Such activities occur in virtually every area of the state. Because of the sheer geographic scale involved, the accuracy of geographical information regarding the locations where deer have been transferred by humans is one of the most important components of efficacious disease management efforts. Knowing exactly where individual animals are and have been allows epidemiological investigators to quickly and accurately determine the source and extent of pathways for disease propagation and allows responders to focus resources efficiently and effectively.

        The department is concerned that current rules governing the movement of live deer under various department-issued programs do not impose a consistent standard for identifying the locations where such deer are trapped, possessed, or transferred, which has the potential to complicate or even confound the department’s CWD management efforts.  The department has determined that the contents of applications and registrations relating to facility location and infrastructure should be specified by rule in order to avoid misunderstandings, confusion, or the implication that the information required in an application is voluntary rather than mandatory or that the accuracy of the information is open to interpretation by applicant. To that end, the department has determined that it is prudent to mandate all required facility registrations (deer breeding facilities (and associated transfer destinations), deer management permit facilities, sites associated with trap, transport, and transplant permits, and trap, transport, and process permits) to include a georeferenced map delineating the exact boundaries of each facility. This would allow the department to more quickly and effectively respond to CWD detections, promote efficiency in administrative processes, enhance enforcement of regulations, and prevent attempts to circumvent CWD testing requirements.

        The proposed amendment to §65.90, concerning Definitions, would alter the definition of “facility” to include locations affected by permits for the trapping, transporting, and processing of game animals (TTP).

        The proposed amendment to §65.91, concerning General Provisions, would provide, no person shall introduce into or remove deer from or allow or authorize deer to be introduced into or removed from any facility unless a georeferenced map (a map image incorporating a system of geographic ground coordinates, such as latitude/longitude or Universal Transverse Mercator (UTM) coordinates) showing the exact boundaries of the facility has been submitted to the department prior to any such introduction or removal.

        The proposed amendment to §65.95, concerning Movement of Breeder Deer, would eliminate a reference to subsection (e) of §65.610 in subsection (a), which is necessary to prevent possible confusion with other provisions governing movement of deer under transfer permits.  

        The proposed amendment to 65.97, concerning Testing and Movement of Deer Pursuant to Triple T or TTP Permit, would remove subsection (a)(2), which would no longer be necessary if the proposed amendments discussed earlier in this preamble are adopted.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Leader, 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 proposed amendments.

3. Public Benefit/Cost Note.

        Mr. Lockwood 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 will be the increase and enhanced ability of the department to respond quickly and effectively to CWD discoveries, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

        (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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community other than to submit a georeferenced map of facility locations, which can be easily done at virtually no expense by anyone. 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 Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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

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

        (G) The department has determined that because the rules as proposed do not impose a significant cost on regulated persons, it is not necessary to repeal or amend any existing rule.

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

                 (1) neither create nor eliminate a government program;

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

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

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (the requirement for georeferenced maps);

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

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

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

4. Request for Public Comment.

Work Session Item No. 12
Presenter: Brandi Reeder

Work Session
Implementation of Legislation from the 85th Texas Legislative Session - House Bill 1260
Relating to the Regulation of Commercial Shrimp Unloading Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 21, 2018

I.      Executive Summary: This item seeks permission to publish proposed changes to the Statewide Shrimp Fishery Proclamation in the Texas Register for public comment. The proposed amendment would implement the requirements of House Bill 1260 (85th Texas Legislature) by stipulating that vessels required to obtain a shrimp unloading permit must stow all shrimp trawls and trawl doors within the confines of the hull of the vessel when in state waters.

II.        Discussion: House Bill 1260 (85th Texas Legislature, 2017) amended the Texas Parks and Wildlife Code by adding new §77.034, which provides that, except for holders of a Texas gulf shrimp boat license, no person may unload or allow to be unloaded at a port or point in this state shrimp or other aquatic products caught or taken from the outside water or from salt water outside the state without having been previously unloaded in some other state or foreign country, unless the person has obtained a commercial gulf shrimp unloading license and a federal commercial vessel permit for gulf shrimp from the National Oceanic and Atmospheric Administration. The bill also requires the Texas Parks and Wildlife Commission to adopt rules for the requirements of trawl gear storage for vessels required to obtain a shrimp unloading license. The proposed rule located at Exhibit A would stipulate that all vessels required to obtain a shrimp unloading license stow all shrimp trawls and doors in the hull of the vessel when in Texas waters.

Work Session Item No. 12
Exhibit A

HOUSE BILL 1260 - SHRIMP UNLOADING LICENSE RULES
PROPOSED PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes an amendment to §58.161, concerning Shrimping in Outside Waters. The proposed amendment provides that a person  who is required to obtain a shrimp unloading license in order to unload (or allow to be unloaded) shrimp or other aquatic products at a port or point in Texas must stow all shrimp trawls and doors while in Texas waters. The amendment is necessary to comply with the provisions of House Bill 1260, which was enacted by the 85th Texas Legislature.

        House Bill 1260 amended the Parks and Wildlife Code by adding new §77.034, which provides that except for holders of a Texas gulf shrimp boat license, no person may unload or allow to be unloaded at a port or point in this state shrimp or other aquatic products caught or taken from the outside water or from salt water outside the state without having been previously unloaded in some other state or foreign country, unless the person has obtained a commercial gulf shrimp unloading license and a federal commercial vessel permit for gulf shrimp from the National Oceanic and Atmospheric Administration. The bill also requires the commission to adopt rules for the requirements of trawl gear storage for vessels required to obtain a shrimp unloading license.

        To facilitate enforcement of commercial shrimp licensing rules and to protect marine resources from unlawful exploitation, the proposed amendment would require any shrimp boat required to obtain a shrimp unloading license to stow all trawls and doors within the confines of the hull while in Texas waters.

2. Fiscal Note.

        Brandi Reeder, Fisheries Law Administrator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rule as proposed, as department personnel currently allocated to the administration and enforcement of shrimping regulations will administer and enforce the rule as part of their current job duties and resources.

3. Public Benefit/Cost Note.

        Ms. Reeder also has determined that for each of the first five years the new rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the management, protection, and enhancement of the shrimp resources of the state, thus ensuring the public of continued recreational and commercial access to shrimp and the continued beneficial economic impacts of the shrimp fishery to Texas.

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

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rule as proposed will not affect small businesses, micro-businesses, or rural communities, since the rule requires certain vessels to house shrimping gear while transiting Texas state waters, where such vessels are not permitted to harvest shrimp. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in 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 rule as proposed will not impact local economies.

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

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

        (F) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

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

                 (1) neither create nor eliminate a government program;

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

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

                 (4) not affect the amount of any fee;

                 (5) create a new regulation;

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

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

                 (8) have an insignificant positive impact on the state’s economy.

4. Request for Public Comment.

Work Session Item No. 13
Presenter: Lance Robinson

Work Session
Red Snapper Exempted Fishing Permit Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 21, 2018

I.      Executive Summary: Staff will provide an overview of the Exempted Fishing Permit (EFP) application for red snapper that Texas Parks and Wildlife Department (TPWD) submitted to the National Marine Fisheries Service (NMFS) in January 2018. The EFP would allow the state of Texas to test data collection and quota monitoring methodologies for the recreational red snapper fishery in state and federal waters during 2018 and 2019.  A change to the Texas Administrative Code is necessary to allow implementation in summer 2018 of any EFP that is approved for Texas.

II.     Discussion: In September of 2017, the National Marine Fisheries Service sent the Gulf States marine fisheries directors a letter inviting them to apply for an EFP that would authorize the states to take the lead on red snapper management activities in the Gulf of Mexico.  This letter was prompted by Senate Report 114-239 which directed the National Oceanic Atmospheric Administration (NOAA) to develop and support a fishery management pilot program that would allow Gulf States to lead reef fish management activities, specifically red snapper.

In response to this request, TPWD submitted a draft EFP application requesting exemption from the federal red snapper season and sector separation to test data collection and quota monitoring methodologies during 2018 and 2019.  Quota monitoring would be accomplished using data collected through the TPWD Coastal Fisheries Division’s Marine Sport-Harvest Monitoring Program, the self-reporting mobile and web application iSnapper, and NOAA’s Southeast Region Headboat Survey. Red snapper fishing would be closed in state and federal waters when landings are projected to meet the state allocation. Proposed rule changes include creation of a rule under 31 Texas Administrative Code Section 57.801 that authorizes the TPWD executive director to make changes to state regulations to conform to a red snapper EFP for 2018 and 2019.

Work Session Item No. 13
Exhibit A

STATEWIDE RECREATIONAL FISHING PROCLAMATION
EXEMPTED FISHING PERMIT (EFP)
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §57.801, concerning Powers of the Executive Director. The proposed amendment would authorize the executive director of the department to implement fishery management plans approved by the U.S. Secretary of Commerce, including but not limited to Exempted Fishing Permits (EFPs), when such action is deemed to be in the best interest of the State of Texas. 

        Despite increases in red snapper stocks to levels not seen before (SouthEast Data, Assessment, and Review 2013), the recreational season established by federal regulation for the red snapper fishery in Texas has steadily dwindled in length. In 2010 the federal recreational red snapper season was 77 days, but has since decreased precipitously, to the point that in 2017 it would have been just three days (Table 1). The proposed three-day recreational season resulted in controversy involving recreational anglers, communities, and elected officials at the local, state, and federal levels in all states bordering the Gulf of Mexico, prompting the U.S. Secretary of Commerce to initiate a process in which federal regulators worked with the affected states (Texas, Louisiana, Mississippi, Alabama, and Florida) to develop an eventual season of 42 days.

Table 1. Number of days allocated by National Marine Fisheries Service for recreational red snapper fishing in federal waters of the Gulf of Mexico, 2010 – 2017.

        In September of 2017 the National Marine Fisheries Service sent the Gulf States marine fisheries directors a letter inviting them to apply for an Exempted Fishing Permit (EFP) that would authorize the individual states to take the lead on red snapper management activities in the Gulf of Mexico.  This letter was prompted by Senate Report 114-239, which directed the National Oceanic and Atmospheric Administration (NOAA) to develop and support a fishery management pilot program that would allow Gulf States to take the lead in reef fish management activities, specifically for red snapper.  EFP’s are issued for conducting research or other fishing activities that would otherwise be prohibited by regulations.

        In response to this request the department submitted an EFP application requesting exemption from the federal red snapper season to test data collection and quota monitoring methodologies during 2018 and 2019.  If approved, fishing under the EFP in Texas would begin this year for all sectors of the recreational red snapper fishery (private (approximately 24,000 anglers), charter-for-hire (212 federally-permitted charter boats), and headboat anglers (16 federally-permitted headboats)).  Based on historical landings data, the department has requested 16% of the gulf-wide annual recreational allowable catch limit (ACL) as the quota for the Texas catch.  In 2017 the gulf-wide ACL for the recreational fishery was just over 6.6 million pounds. If the gulf-wide ACL for 2018 and 2019 remained at this level, Texas’ quota would be approximately 1.1 million pounds of red snapper annually.  By comparison and for perspective, Texas anglers landed 500,000 pounds of red snapper in 2016.

        Under the terms of the EFP, landings of red snapper would be monitored weekly from data collected through the Texas Marine Sport Harvest Monitoring Program, validated self-reported data from a smart-phone application (iSnapper), and data from the NOAA Headboat Survey. All red snapper landed in Texas will count against Texas’ quota, and the fishery in both state and federal waters must be closed when the combined estimated recreational landings are projected to meet the quota. In order to avoid exceeding the quota, the department has determined that there must be a regulatory mechanism at the state level to allow the department to quickly close the fishery in state and federal waters when the quota is reached. Therefore, the proposed amendment would allow the executive director to take the necessary action to implement management plans approved by the U.S. Secretary of Commerce (including EFP’s) in the Exclusive Economic Zone (federal waters).

Literature Cited

SEDAR 31. 2013. Stock assessment report Gulf of Mexico red snapper. Southeast Data, Assessment, and Review. North Charleston, South Carolina.

2. Fiscal Note.

        Lance Robinson, Deputy Director of the Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the potential for increased angling opportunity through longer seasons for recreational anglers to participate in the red snapper fishery in both state and federal waters of the Gulf of Mexico.

        (B) There will be no adverse economic effect 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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rule as proposed will not adversely affect small businesses, micro-businesses, or rural communities, and if anything will result in positive economic impacts for all three categories of entities. Accordingly 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 Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

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

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

        (G) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

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

                 (1) neither create nor eliminate a government program;

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

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

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

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

                 (7) expand, limit, or repeal an existing regulation (by authorizing the executive director to implement federal fisheries management plans); and

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

4. Request for Public Comment.

Work Session Item No. 14
Presenter: Lance Robinson

Work Session
Oyster License Buyback Program Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 21, 2018

I.      Executive Summary:  House Bill 51, enacted by the 85th Texas Legislature, directs Texas Parks and Wildlife Department (TPWD) to implement a license buyback program for licenses issued under Subchapter F, Chapter 76 of the Texas Parks and Wildlife Code.

II.     Discussion:  Responsibility for establishing provisions enabling a commercial oyster license buyback program is delegated to the Texas Parks and Wildlife Commission under the Texas Parks and Wildlife Code, Chapter 76, Oysters, authorized by passage of House Bill 51 in the 85th Texas Legislature. The legislation directs TPWD or its executive director to consult with the oyster license moratorium review board concerning the establishment of the buyback criteria.

Senate Bill 272 enacted by the 79th Texas Legislature established an Oyster License Moratorium in the commercial oyster fishery that capped the number of commercial oyster boat licenses at levels current as of August 31, 2005. Proposed rule changes include the creation of an Oyster Fishery Proclamation, 31 Texas Administrative Code §58.70, which creates the elements of an oyster license buyback program, such as application requirements, maximum value criteria, ranking procedures, and notification processes and which allows TPWD to purchase and retire commercial oyster boat licenses in the future.

The commercial oyster boat license buyback program should stabilize effort in the fishery, thus creating a more stable and economically viable industry. Additionally, the program should provide the mechanisms needed to ensure reduction of effort through time, allowing for the long-term recovery and protection of the oyster fishery.

Work Session Item No. 14
Exhibit A

STATEWIDE OYSTER FISHERY PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes new §58.70, concerning the Oyster License Buyback Program. The proposed new rule would create a buyback program for commercial oyster licenses by prescribing the application requirements and bidding procedures for prospective license offerors, setting forth the criteria to be used by the department in ranking bids from offerors and the selection of licenses to be purchased (if any), providing for notification of applicants of acceptance or rejection of bids, and authorizing the delegation of license buyback authority to third parties.

        The 79th Legislature (2005) enacted Senate Bill 272, which directed the department to implement a license moratorium to promote efficiency and economic stability in the oyster industry. In the period between the passage of SB 272 and its effective date, commercial oyster license sales increased by 127% in comparison to the previous five-year average, which the department attributes to speculative behavior by persons anticipating a future opportunity to sell licenses back to the department at a profit. In 2017, the 85th Texas Legislature enacted House Bill 51, which, among other things, required the department to implement a commercial oyster license buyback program. Accordingly, the proposed new rule would create a mechanism for the purchase and retirement of commercial oyster licenses. Although some attrition in the number of licenses has occurred over the years and it appears that a significant number of licenses have never actually been used, the number of licenses remaining constitutes a risk to the recovery and sustainability of oyster resources in Texas, given the current state of the fishery and the resultant pressure on oyster resources.

        Proposed new §58.70(a) would provide for the delegation of authority to the executive director of the department to administer the oyster license buyback program. Although such authority is implicit in the provisions of H.B. 51 that direct the department to implement and administer a license buyback program, the department has determined that the rule should be patterned after existing rules governing the license buyback program for shrimp (31 TAC §58.130) in order to avoid confusion.

        Proposed new §58.70(b) would provide for the establishment of application periods based on the availability of funds, during which bids would be accepted by the department. The department anticipates that funds for license buyback will not be continuously available; therefore, the department believes it is efficient to conduct buyback activities during specific periods when funds are available.

         Proposed new §58.70(c) would require an applicant to be the owner of a license offered for buyback and to submit a department-supplied application form by the stated deadline. The proposed new subsection would also prescribe the contents of the application form. The application form would require the applicant’s full name, current residence address and social security number, documentation attesting that applicant is the sole owner of the vessel and holds the sole rights and privileges to the license (or that all members of a partnership or corporation have agreed to the application and the bid contained in the application), the federal vessel documentation number or state registration number for the vessel, a copy of the applicant’s current commercial oyster boat license, and the applicant’s bid offer, in U.S. dollars. The department believes that it is necessary and prudent to verify that a person seeking to sell a license is legally entitled to do so, which necessitates that the department verify the person’s identity, legal residence, and licensure status, as well as vessel documentation.

        Proposed new §58.70(d) would set forth the criteria that could be used by the department in evaluating applications and selecting licenses for buyback, such as vessel length, the funds available to the department; the number of commercial oyster boat licenses in the fishery issued in the license year of the specific bid offer application period, bid offers from previous application periods, established open market prices for licenses, and other relevant factors. The department has determined that since a variety of factors are in play at any given time, the department should have the latitude to consider all of them in the process of determining whether a license should be repurchased and at what price.

        Proposed new §58.70(e) would establish the procedure used by the department to prioritize bid offers. The proposed new subsection would provide that applications be ranked from highest to lowest using the criteria in proposed new subsection (d), that licenses be purchased in order from highest to lowest evaluations, and that in the case of bid offers that are ranked equally, priority will be given to the larger vessel and after that, in alphabetical order of the applicant’s last name. The department has determined that in cases where two bid offers have an equal ranking, the larger vessel should take precedence since the larger the vessel, the greater the harvest and storage capacity and, concomitantly, the greater the positive impact on oyster resources realized by the purchase of that license. Beyond that, there are no additional useful criteria and an alphabetical order is necessary simply to separate bid offers that are so similar as to be indistinguishable.

        Proposed new §58.70(f) would require the department to notify applicants within 45 days of receipt of an application of the department’s decisions to either accept or reject the applicant’s bid offer, and would give accepted applicants 15 days from the date of notification to accept or reject the department’s offer. The department considers that because the process set forth by the proposed rule takes place within a specified period, the timeframe of the decision to accept or refuse the department’s decision cannot be open-ended, but must be definitive as of a date certain.

        Proposed new §58.70(g) would provide for the delegation of purchasing authority to qualified agents. The department has determined that circumstances in some cases might make it more convenient and efficient for a qualified agent to analyze and accept or reject bids according to the provisions of the rule.

2. Fiscal Note.

        Lance Robinson, Deputy Director of the Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule, as the administration of the oyster license buyback program will be performed by existing staff as part of current job duties.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the long-term sustainable management of the oyster resource and increased social and economic benefits for the oyster fishery in Texas. The program should stabilize effort in the fishery through time, allowing for the long-term recovery and protection of the oyster fishery.

        (B) There will be no adverse economic effect on persons required to comply with the rule as proposed, as participation in the license buyback program is not mandatory, but at the discretion of the license holder.

        (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, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “generally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rule as proposed will not adversely affect small businesses, micro-businesses, or rural communities, as it compels no person, small business or microbusiness to comply with any rule other than those set forth for participation in a voluntary program under which the department may repurchase oyster licenses and for those same reasons exerts no direct effect on any rural community. Accordingly 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 Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

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

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

        (G) The department has determined that because the rule as proposed does not impose a cost on regulated persons and is necessary to implement legislation, it is not necessary to repeal or amend any existing rule.

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

                 (1) not eliminate a government program, but will create an oyster license buyback program;

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

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

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (to administer the oyster license buyback program);

                 (6) decrease the number of individuals subject to regulation through time;

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

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

4. Request for Public Comment.

Work Session Item No. 15
Presenter: Craig Bonds

Briefing
Alligator Gar – Status of Science and Management
March 21, 2018

I.      Executive Summary:  Texas Parks and Wildlife Department (TPWD) staff will provide an update on the status of Alligator Gar research and management in Texas.

II.     Discussion:  Texas supports excellent and diverse Alligator Gar fishing opportunities enjoyed by an estimated 100,000 Texas anglers.  Fisheries in rivers, reservoirs, and coastal bays attract rod-and-reel and bow anglers from across the world.  The Texas Parks and Wildlife Commission (Commission) approved a one-fish-per-day bag limit for Alligator Gar in 2009 to address increased public interest in the species and concern for potential over-harvest. Research and management biologists have conducted significant research on Alligator Gar populations since 2009.  Outreach activities are planned this year to inform Alligator Gar anglers of research findings and to survey the anglers about their opinions to inform possible management actions.  TPWD’s goal is to continue to work with constituents to provide a diversity of fishing opportunities, while sustaining this unique resource. Staff will update the Commission on previous and current research including: spawning success during recent flooding events; differences between coastal and inland populations; contaminant loading in large gar; and modeling population responses under various harvest regulation scenarios.

Work Session Item No. 16
Presenter: Stan David

Work Session
Acquisition of Land - Brewster County
Approximately 16,000 Acres at the Black Gap Wildlife Management Area
Permission to Begin the Public Notice and Input Process
March 21, 2018

I.      Executive Summary: The Texas General Land Office (GLO) is willing to sell approximately 16,000 acres of strategically located high quality habitat adjacent to the Black Gap Wildlife Management Area (WMA).

II.     Discussion: The Black Gap WMA, immediately east of Big Bend National Park in Brewster County, consists of 102,974 acres of rugged ridgelines, canyons, and desert flats, including some fifteen miles of frontage on the Rio Grande River. Elevations range from roughly 1,565 feet above sea level at the northeast corner, to well over 5,500 feet along ridgetops in the south. The diversity in topography, elevations, soils, and vegetation makes the WMA home to numerous species of indigenous west Texas wildlife, including species of special interest for conservation such as the desert bighorn sheep and the black bear.

The GLO owns most of the remaining unprotected land between the WMA and the national park. Texas Parks and Wildlife Department (TPWD) staff has long recognized the strategic nature of this land for preserving important habitat, critical wildlife corridors, landscape-scale biological functions, and an iconic west Texas landscape. The GLO is currently divesting itself of lands in this region. Sale of this land to the private sector for subdivision and unrestricted use could significantly compromise the long-term conservation vision for this region.

A contiguous block of approximately 16,000 acres of GLO land is adjacent to the Black Gap WMA. This block is currently leased to the Texas Bighorn Society and includes approximately eleven miles of boundary in common with the WMA and more than seven miles of frontage on the Rio Grande River. TPWD staff has been in discussions with GLO about the terms and conditions of a fee acquisition of this tract for addition to the WMA.

Staff requests permission to begin the public notice and input process.

Work Session Item No. 16
Exhibit A

Location Map for Black Gap WMA in Brewster County

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Exhibit B

Vicinity Map for Black Gap WMA in Brewster County

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Exhibit C

Site Map for Proposed 16,000-Acre Acquisition from GLO
WMA Outlined in Orange
National Park Outlined in Yellow
Subject GLO Tracts Outlined in Red

Work Session Item No. 20
Presenter: Trey Vick

Work Session
Exchange of Land - Washington County
Approximately 1 Acre at Washington on the Brazos State Historic Site
Permission to Begin the Public Notice and Input Process
March 21, 2018

I.      Executive Summary: Texas Parks and Wildlife Department (TPWD) staff is in negotiations with a willing neighbor for the exchange of approximately 1-acre tracts near the entrance of Washington on the Brazos State Historic Site.

II.     Discussion: Washington on the Brazos State Historic Site overlooks the Brazos River and is the place where 59 delegates met to make a formal declaration of independence from Mexico in March, 1836.   The original 50-acre site was acquired by the state in 1916 to preserve the original Washington town site. Today the site consists of 293 acres and includes the reconstructed Independence Hall, the Star of the Republic Museum and the Barrington Living History Farm which demonstrates what life was like in Texas in the 1850s.

It has long been a goal of the park to acquire additional land at the park entrance in order to protect the aesthetics of the arrival experience and potentially upgrade the existing entry portal.  Staff is currently in negotiations for the acquisition of a 4-acre tract in close proximity to the park entrance.  The Texas Parks and Wildlife Commission (Commission) approved the 4-acre acquisition at its January 26, 2017 meeting.  In order for this 4-acre tract be contiguous to park property, a 1-acre tract adjacent to the park entrance must be acquired.  The owner of the adjacent 1-acre tract is willing to exchange his tract for a 1-acre tract out of the 4-acre tract.  If approved, this exchange will be executed simultaneously with the closing of the 4-acre acquisition.

Staff requests permission to begin the public notice and input process.

Work Session Item No. 20
Exhibit A

Location Map for Washington on the Brazos SHS in Washington County

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Exhibit B

Vicinity Map for Washington on the Brazos SHS 6 Miles South of Navasota

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Exhibit C

Site Map for Washington on the Brazos and Subject Tract
State Historic Site Outlined in Red
4-Acre Tract Outlined in Yellow

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Exhibit D

Site Map for Washington on the Brazos and Subject Tract
State Historic Site Outlined in Red
1-Acre Exchange Tracts

Work Session Item No. 21
Presenter: Bob Sweeney

(Executive Session Only)
Litigation Update
March 21, 2018

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

• Potential litigation and/or involvement with current litigation relating to actions of the National Marine Fisheries Service (NMFS), an agency within the National Oceanic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce, in connection with the regulation of red snapper.
• Potential or pending litigation related to oysters, including but not limited to 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.
• Potential or pending litigation regarding disease in white-tailed deer, including but not limited to 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 Travis County District Court.

Work Session Item No. 22
Presenter: Bob Sweeney
Trey Vick

(Executive Session Only)
Boundary Issues Update – Blanco State Park
March 21, 2018

I.      Executive Summary: Recent deed research and mapping at Blanco State Park has revised Texas Parks and Wildlife Department’s (TPWD) understanding of the park’s extent and boundary.

II.     Discussion: The 101-acre Blanco State Park straddles the Blanco River for more than two miles within the City of Blanco.  The park was acquired from local ranchers in the 1930s and is very popular with families looking for safe access to the clear waters of the Blanco River for swimming, tubing, picnicking or just enjoying a picturesque Hill Country stream for the day.  The park is particularly popular for its size, attracting more than 100,000 visitors in Fiscal Year 2016.

TPWD staff has been actively researching title records and mapping the results for the Department’s state parks and wildlife management areas, in order to improve understanding of site boundaries and possible boundary issues. During the course of researching Blanco State Park, it was discovered that TPWD does not own a tract it has been managing as part of the park for decades. As a result, a stretch of land owned by TPWD is severed from the rest of the park (upstream) by a quarter mile. This “orphan” tract is approximately 3.2 acres, being roughly 1,100 feet long and approximately 130’ deep, extending to the centerline of the Blanco River. Staff believes that the tract is not serving the purposes for which it was acquired and is an operational liability. Staff recommends that the tract be sold and the sale proceeds be applied to strategic state park land acquisitions.

Staff requests permission to begin the public notice and input process.

Work Session Item No. 22
Exhibit A

Location Map for Blanco State Park 45 Miles North of San Antonio

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Exhibit B

Vicinity Map of Blanco SP

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Exhibit C

Site Map of Blanco SP
Main Body of Park Outlined in Red

Work Session Item No. 22
Exhibit D

Site Map of Blanco SP Showing Tract Proposed for Disposition