PART 1. GENERAL LAND OFFICE
CHAPTER 15. COASTAL AREA PLANNING
SUBCHAPTER A. MANAGEMENT OF THE BEACH/DUNE SYSTEM
The General Land Office (GLO) adopts an amendment to 31 TAC §15.27, relating to Certification Status of Matagorda County Dune Protection and Beach Access Plan (Plan), without changes to the proposed text as published in the March 22, 2013, issue of the Texas Register (38 TexReg 1949). The text of the rule as adopted will not be republished. The amendment adds a new subsection (b) which certifies as consistent with state law the Plan, as amended by the Erosion Response Plan (ERP), which was adopted by Matagorda County (Matagorda) by Commissioners Court resolution on January 28, 2013.
Copies of Matagorda's ERP can be obtained by contacting Sally Davenport of Coastal Technology Corporation at (512) 236-8194 or s.davenport@texastechcorp.com and from the GLO's Archives Division, Texas General Land Office, P.O. Box 12873, Austin, TX 78711-2873, phone number (512) 463-5277.
BACKGROUND
Matagorda is a coastal county located adjacent to Brazoria, Calhoun, Jackson and Wharton Counties. Matagorda includes approximately 55 miles of beach bordering on the Gulf of Mexico along Matagorda Peninsula and Matagorda Island. The areas governed by the Plan include those beaches and adjacent areas bordering the Gulf of Mexico located within Matagorda.
Pursuant to §33.607 of the Coastal Public Lands Management Act of 1973 (Texas Natural Resources Code, Chapter 33) and the Beach Dune Rules (31 TAC §15.17) Matagorda has prepared an ERP and submitted it to the GLO for certification as an amendment to its Plan. Pursuant to the Open Beaches Act (Texas Natural Resources Code, Chapter 61), the Dune Protection Act (Texas Natural Resources Code, Chapter 63), and the Beach/Dune Rules (31 TAC §15.3), a local government with jurisdiction over Gulf beaches must submit its dune protection and beach access plan and any amendments to such a plan to the GLO for certification. Matagorda amended its Plan to include the ERP by Commissioners Court resolution on January 28, 2013. The GLO is required to review such plans and certify by rule those plans that are consistent with the Open Beaches Act, the Dune Protection Act, and 31 TAC Chapter 15. The certification by rule reflects the state's approval of the plan, but the text of the plan is not adopted by the GLO under 31 TAC §15.3(o)(4).
THE MATAGORDA COUNTY BEACH AMENDMENTS
Matagorda has adopted an ERP and submitted it to the GLO for certification as an amendment to its Plan in accordance with 31 TAC §15.17 and §15.3(o) and Texas Natural Resources Code §33.607 and §61.011. Matagorda amended its Plan by Commissioners Court resolution on January 28, 2013 to adopt the ERP. Based on the information provided by Matagorda, the GLO has determined that the ERP is consistent with the Open Beaches Act, the Dune Protection Act, and the 31 TAC Chapter 15 and that the requirements of the ERP are incorporated into Matagorda's Plan and procedures for reviewing and approving permit applications. Therefore, the GLO finds that the approved amendments to the Plan are consistent with state law and hereby approves and certifies Matagorda's ERP.
REASONED JUSTIFICATION
The justification for the adopted amendment is that implementation of an ERP will preserve and enhance dunes, which delays erosion, reduces the intensity of storm surges and increases protection for infrastructure located in coastal areas. Construction standards established in the ERP will increase protection against erosion and storms for structures located within or landward of the dune conservation area. Construction requirements will reduce loss of life and reduce public expenditures associated with damage to and loss of public infrastructure due to erosion, storm damage, and disaster response costs. The identification of restoration areas in the ERP will focus mitigation and restoration efforts in areas that may be vulnerable to storm inundation and are potential avenues for floodwaters that may cause damage to public infrastructure and private properties. The setback line in the ERP allows for the formation of dunes, which maintains a natural buffer against normal storm tides and allows dune processes to function with minimal disturbance to the dune system and property owners. Preservation of and improvements to foredune ridges protect existing structures and properties against damage from storm surge and reduce the possibility of structures becoming located on state-owned submerged lands, which results in a loss to landowners and increases expenditure of public funds for removal of the unauthorized structures from public beaches. Improvements to beach access points preserve public access and protect against degradation of coastal areas by erosion and storm surge.
SUMMARY AND RESPONSE TO COMMENTS
No public comments were received during the thirty (30) day comment period.
CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM
The amendment to §15.27, relating to Certification Status of Matagorda County Dune Protection and Beach Access Plan, is subject to the Coastal Management Program (CMP) goals and policies as provided in Texas Natural Resources Code §33.2053(a)(10) and §33.2051(c). The applicable CMP goals and policies are found under 31 TAC §501.11, relating to Goals, and §501.26, relating to Policies and Construction in the Beach/Dune System. The GLO reviewed the amendment for consistency and determined that the amendment is consistent with the Beach/Dune regulations and the applicable CMP goals and policies. No comments were received from the public or the Commissioner regarding the consistency determination. Consequently, the GLO has determined that the adopted rule amendment is consistent with the applicable CMP goals and policies.
STATUTORY AUTHORITY
The amendment is adopted under Texas Natural Resources Code §33.607 and §61.011 relating to GLO's authority to adopt rules to preserve and enhance the public's right to access the public beach and reduce public expenditures from erosion and storm damage to public and private property, including public beaches.
Texas Natural Resources Code §§33.601 - 33.613 and §61.015 are affected by the adopted amendment.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 3, 2013.
TRD-201302250
Larry L. Laine
Chief Clerk, Deputy Land Commissioner
General Land Office
Effective date: June 23, 2013
Proposal publication date: March 22, 2013
For further information, please call: (512) 475-1859
CHAPTER 57. FISHERIES
SUBCHAPTER N. STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION
The Texas Parks and Wildlife Commission in a duly noticed meeting on March 28, 2013, adopted amendments to §§57.971 - 57.973, 57.976, 57.981, 57.982, 57.992, and 57.996, concerning Statewide Recreational and Commercial Fishing Proclamation. Section 57.976 is adopted with changes to the proposed text as published in the February 22, 2013, issue of the Texas Register (38 TexReg 1103). Sections 57.971 - 57.973, 57.981, 57.982, 57.992, and 57.996 are adopted without changes and will not be republished.
The change to §57.976, concerning Importation of Aquatic Animal Life, alters proposed subsection (d) to clarify that the provision applies to an aquatic wildlife resource possessed in state waters that was obtained in the Exclusive Economic Zone (EEZ) in violation of any applicable federal law. As proposed, the provision created a state offense for possession in state waters of an aquatic wildlife resource taken in the EEZ in violation of any of four broad categories of violations (take during a closed season, within a protected length limit or in excess of the daily bag limit, with any gear or device prohibited by federal law, or without a license or permit required by federal law). Although the list of categories probably captures every circumstance under which aquatic wildlife resources can be taken, it was not intended to be an exhaustive or exclusive list. The change makes it clear that provision applies to any illegal take of aquatic wildlife resources in the EEZ.
The amendments include changes occurring as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.
The amendment to §57.971, concerning Definitions, adds new definitions for "crab" and "handfishing," eliminates a redundancy in the definition of "purse seine," and clarifies the definitions of "trap" and "residence." The amendment adds new paragraph (9) to define "crabs" as "all species within the families Portunidae and Menippidae." Under Parks and Wildlife Code, §78.102(1), crabs are defined as "all species within the families Portunidae and Xanthidae." There is no universal method or system for assigning taxonomic rank to organisms. The generally accepted goal of taxonomy is to group organisms by similarities of function, structure, or genetics; however, because scientific investigations continue to reveal previously unknown information about specific organisms or groups of organisms, their taxonomic designations can be changed, even though the organisms themselves remain unchanged. Recent generally accepted taxonomic revisions have split the family Xanthidae into seven new families, one of which (Mennipidae) contains species of crabs indigenous to Texas. The amendment reflects recent changes in taxonomic nomenclature with respect to crabs.
The amendment creates new paragraph (25), which defines "handfishing" as "fishing by the use of hands only and without any other fishing devices such as gaff, pole hook, stick, trap, or spear." The definition is a verbatim repetition of the statutory definition of handfishing in Parks and Wildlife Code, §66.115(a), with the exception of the word "stick." The department has determined that although it is clear from the grammatical constructions "use of hands only" and "such as...", followed by a list of gears, that the intent of the statute is to restrict handfishing solely to the use of hands, it is necessary to clarify that in addition to the statutory proscription on the use of gaffs, pole hooks, traps, or spears, the use of sticks is also unlawful.
The amendment deletes paragraph (34), the current definition of "permanent residence," in order to create a new definition of "residence" in new paragraph (37).
The amendment creates new paragraph (37), which defines "residence." The intent of the current definition of "permanent residence" is to prevent the use of a temporary accommodation as a final destination for purposes of avoiding compliance with possession limits and documentation requirements. The department considers that a person may maintain more than one residence and should not be required to return to his or her domicile with a daily bag or possession limit. Therefore, the department has determined that the current rule is unintentionally restrictive and modifies it to define a "residence" as "a permanent structure where a person regularly sleeps and keeps personal belongings such as furniture and clothes," while retaining the current prohibition on temporary abodes or dwellings such as a hunting or fishing club, club house, cabin, tent, or trailer house or mobile home used as a hunting or fishing camp, or any hotel, motel, or rooming house. The amendment eliminates the current reference to "hunting, fishing, pleasure, or business trip" and replaces it with "temporary basis." The department has determined that the rule should not attempt to characterize or list the possible purposes for the use of an accommodation but instead establish the permanency of use.
The amendment to current paragraph (35), regarding "purse seine (net)" removes the word "net," which is redundant.
The amendment to current paragraph (42), regarding the definition of "trap," clarifies the current definition by appending to it a list of examples of devices (box, barrel, or pipe) the department considers to meet the criteria established by the current definition.
The amendment to §57.972, concerning General Rules, updates the taxonomic names of sawfishes, clarifies an existing rule governing the use of boats to drive fish, and remove references to possession of red drum tags. As discussed in the amendment to §57.971 regarding crabs, the taxonomic designations of organisms are not fixed. Similar to the case of crabs, the scientific names of sawfishes have been changed. The amendment to subsection (f) reflects the change.
Under current subsection (g)(7), it is unlawful for any person to use any vessel to harass fish. The amendment alters subsection (g)(7) by eliminating the word "harass" and replacing it with the words "harry, herd, or drive," including a proscription on the operation of any vessel "in a repeated circular course," and makes it clear that the actions described in the paragraph must be "for the purpose of or result in the concentration of fish for the purpose of taking or attempting to take fish." The amendment is necessary because the department has determined that it is important to provide a clearer articulation of the acts or actions the department considers to constitute the use of boats to move fish for purposes of take.
The amendment to subsection (g) also eliminates current paragraph (13)(G) and (I), concerning the possession and use of red drum tags. Under the current rules, a person may catch and retain only one red drum of greater than 28 inches in length, which must be tagged with the red drum tag from the person's fishing license, and a person may exchange a used red drum tag for a bonus red drum tag and then retain another oversize red drum; however, no person may be in simultaneous possession of a red drum tag and a bonus red drum tag, or the exempt equivalents. The current rules were promulgated at a time when the department was concerned about red drum populations and needed to get better statistics concerning their harvest. Long-term department trend data indicate that oversize red drum constitute less than 3% of the total red drum harvest; therefore, there is no longer a need to obtain highly detailed harvest information or to prohibit the simultaneous possession of a red drum tag and a bonus red drum tag.
The amendment to §57.973, concerning Devices, Means, and Methods, consists of several actions. The amendment alters current subsection (b) to list places where angling is restricted solely to the use of pole-and-line devices. Provisions regarding those places where the number of devices that may lawfully be employed are regulated have been relocated to new subsection (c). With the exception of subsection (b)(4), the changes are nonsubstantive. Subsection (b)(4) adds Canyon Lake Project #6 to the list of places where angling is restricted solely to pole-and-line. Within the City of Lubbock there are a series of urban lakes, and all of the waterbodies except one (Canyon Lake Project #6) are classified as community fishing lakes (CFLs), on which angling is by rule restricted solely to pole-and-line. The Canyon Lake Project #6 lake is 82 acres, which makes it slightly larger than the 75-acre minimum for established by rule for CFLs. Under the provisions of the subchapter, CFLs have a specific set of regulations on catfish harvest and gear usage. Confusion exists among local anglers in the Lubbock area regarding the regulations in effect on Canyon Lake Project #6. The department has determined that for purposes of consistency and alleviation of angler confusion, the harvest regulations on Canyon Lake Project #6 should be the same as the other CFLs: a five-fish daily bag limit for channel and blue catfish (no minimum length limit), methods restricted to pole-and-line only, and no more than two devices per person.
The amendment alters current subsection (f) by adding new paragraph (8) to govern handfishing. The Texas Legislature in 2011 enacted House Bill 2189, which amended Parks and Wildlife Code by adding §66.115, making it lawful to "fish for catfish by use of the hands only and without any other fishing device such as a gaff, pole hook, trap, or spear." The amendment replicates the statute in rule for ease of reference and recapitulates that it is unlawful to place or use a trap for the purpose of taking catfish. The amendment also alters current subsection (f)(13) by removing the word "net" from the initial phrase "purse seine (net)." Because "purse seine" is defined under §57.971 as a net, the phrase is redundant.
The amendment to §57.976, concerning Possession of Wildlife Resource; Importation, retitles the section "Importation of Aquatic Animal Life," removes the provisions concerning possession of wildlife in current subsection (a), and adds provisions clarifying the legal status of aquatic animal life taken in the EEZ under federal jurisdiction. The department has determined that the provisions of current §57.976(a), which apply to the possession of resources, would be more appropriate as part of §57.981, concerning Bag, Possession, and Length Limits. The remaining provisions, with the addition of the provisions that apply to resources brought into to state waters from the EEZ, have been located in §57.976, concerning Importation of Aquatic Animal Life. The state of Texas has management jurisdiction for fisheries resources in state waters (which extend nine nautical miles from the Texas coast), but the area from the seaward edge of state waters for a distance of 191 nautical miles fall within federal management jurisdiction. In some cases, the bag and possession limits in state waters for certain species differ from those in federal waters for those species. It is common for state game wardens to encounter persons in state waters who possess aquatic animal life that was unlawfully taken in federal waters. At the current time, such cases cannot be filed in a state jurisdiction; however, increased caseloads in federal courts have caused federal prosecutors to become increasingly selective about which cases to prosecute. This has led to a perception that compliance with federal resource conservation regulations is unnecessary, which is injurious to Texas aquatic animal life because it is a shared resource. The amendment makes it a violation of state law to possess aquatic animal life in Texas that was unlawfully taken in violation of federal law in the EEZ. The amendment is necessary to encourage the angling public to comply with resource conservation regulations irrespective of jurisdiction.
The amendment to §57.981, concerning Bag, Possession, and Length Limits, adds a provision concerning the applicability of possession limits and import provisions from current §57.976 concerning possession of resources (covered in the discussion of the amendment to §57.976). In 2010 the department restructured hunting and fishing regulations to separate hunting rules from fishing rules and recreational fishing rules from commercial fishing rules. In the process, the department overlooked a provision governing the endpoint of the applicability of possession limits. That provision, which states that for all wildlife resources taken for personal consumption and for which there is a possession limit, the possession limit shall not apply after the wildlife resource has reached the possessor's permanent residence and is finally processed, has been added to §57.981 as subsection (a). The provisions being relocated from §57.976 are in new §57.981(c)(4).
The amendment to §57.981 also alters current harvest regulations for largemouth bass on Kurth Reservoir, a 726-acre reservoir located approximately five miles north of Lufkin. Current use is recreation, but the City of Lufkin has plans to supply water for mining ventures. Current harvest regulations for largemouth bass consist of a 14-inch minimum length limit and a five-fish daily bag limit. Kurth currently supports a high-quality largemouth bass fishery, as reflected in population sampling and anglers' catches. Staff believes these metrics indicate the reservoir has the potential to develop into a trophy bass fishery. A sample of registered anglers who had purchased a 2011 access permit to the reservoir were sent a questionnaire on their opinion of the overall fishery and current largemouth bass regulations. Survey respondents were very satisfied with the fishery, and 65% indicated they would like more restrictive largemouth regulations. The amendment establishes a maximum length limit of 16 inches, which is intended to increase numbers of trophy-sized bass in the population by providing protection to large bass currently vulnerable to harvest (greater than 14 inches). Allowing harvest of bass 16 inches or shorter also could decrease intraspecific competition and increase growth rates. The amendment allows one fish of 24 inches or greater to be retained alive in a live well for purposes of immediate weighing using personal scales. Bass weighing 13 pounds or more may be retained for donation to the ShareLunker Program; otherwise, fish must be immediately released.
The amendment to §57.981 also alters current harvest regulations for largemouth bass on Lake Jacksonville, a 1,206-acre reservoir located approximately 20 miles south of Tyler. The current 18-inch minimum length and five-fish daily bag limit was established in September 2000, due to angler concerns about the scarcity of fish larger than the 14-inch statewide minimum length. The current regulation has been successful in restructuring the largemouth bass population and producing more fish 14 inches or longer. Recently, largemouth bass tournament angling has become increasingly popular, with Lake Jacksonville hosting at least three weekly tournaments. With the increase in tournament activity, anglers requested being allowed to weigh in 14-18 inch bass. The amendment is intended to allow bass to be weighed-in during tournaments and to facilitate the harvest of additional bass, but still provide some harvest protection for bass in the 14-to-18-inch size range. In an on-line survey designed to evaluate angler opinion on possible changes to bass regulations, 91 anglers responded to the survey with two-thirds in favor of the regulation.
The amendment to §57.982, concerning Crabs and Ghost Shrimp, removes a historical reference to the previous scientific name for ghost shrimp. The change is nonsubstantive.
The amendment to §57.992, concerning Bag, Possession, and Length Limits, alters subsection (a) to clarify that the possession limit applies to aquatic animal life possessed or stored by any person, but does not apply to aquatic animal life that has been lawfully obtained and for which the possessor has a receipt or invoice identifying the person the aquatic life was obtained from, the number and species, date of sale, and any other information required to be on a sales ticket or invoice. The clarification is necessary to clearly delineate the standards that apply to possession of aquatic animal life in excess of possession limits.
The amendment also eliminates the special regulations for black drum and sheepshead, which are no longer necessary because commercial and recreational regulations are now in different divisions of Chapter 57.
The amendment to §57.996, concerning Crabs and Ghost Shrimp, removes a historical reference to the previous scientific name for ghost shrimp and reflects that ghost shrimp may not be retained for commercial purposes. The change is nonsubstantive.
The amendment to §57.971 will function by establishing definitive meanings for words and terms used in the various subchapters for purposes of compliance and enforcement.
The amendment to §57.972 will function by updating taxonomy, providing greater clarity to existing rules, and eliminating certain tag-possession requirements.
The amendment to §57.973 will function by reorganizing the section into a more intuitively navigable set of provisions, implementing Community Fishing Lake harvest requirements on a lake, and repeating statutory provisions regarding handfishing.
The amendment to §57.976 will function by renaming the section, reorganizing its contents, and clarifying the legal status of aquatic animal life taken in the EEZ under federal jurisdiction.
The amendment to §57.981 will function by asserting applicability of possession limits and import provisions formerly in another section and altering harvest regulations on various lakes and reservoirs.
The amendment to §57.982 will function by eliminating unnecessary language.
The amendment to §57.992 will function by clarifying the applicability of possession limit requirements and eliminating duplicative language.
The amendment to §57.996 will function by eliminating unnecessary language.
The department received three comments opposing the adoption of the portion of the proposed amendment to §57.971 that affects fish harassment. All three commenters articulated a reason or rationale for opposing adoption. Those comments, accompanied by the department response to each, follow.
One commenter opposed adoption and stated that the rule penalizes people who know how to find fish. The department disagrees with the comment and responds that the amendment simply clarifies an existing law; under current rule it is unlawful to use a boat to herd fish and the rule has been in effect for many years. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule as proposed is insufficient because it does not prohibit the use of a boat to prevent other people from catching fish. The department disagrees with the comment and responds that under Parks and Wildlife Code, §62.0125, it is an offense for any person to intentionally interfere with another person lawfully engaged in the process of hunting or catching wildlife or to intentionally harass, drive, or disturb any wildlife for the purpose of disrupting a person lawfully engaged in the process of hunting or catching wildlife. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should retain the current rule as it is written because it prohibits the harassment of fish without regard to method. The commenter stated that the rule as proposed, by prohibiting specific actions rather than a specific effect, would narrow the types of behavior that could be construed as fish harassment. The department disagrees with the comment and responds that the rule as adopted clearly states that the offense of fish harassment includes but is not limited to the actions listed in the section. No changes were made as a result of the comment.
The department received 23 comments supporting adoption of the proposed amendment to §57.971 that affects fish harassment.
No groups or associations commented in opposition to adoption of the proposed amendment to §57.971 that affects fish harassment.
The Port Aransas Boatmen's Association and Wade, Paddle, and Pole supported adoption of the proposed amendment to §57.971 that affects fish harassment.
The department received eight comments opposing the adoption of the portion of the proposed amendment to §57.971 regarding possession of red drum tags. Of the eight comments, four articulated a reason or rationale for opposing adoption. Those comments, accompanied by the department response to each, follow.
One commenter opposed adoption and stated that the bag limit for red drum should be reduced to one. The department disagrees with the comment and responds that the intent of the rulemaking is to remove an offense which is no longer necessary, not to adjust bag limits. No changes were made as a result.
Two commenters opposed adoption and stated that the rule as proposed would result in population declines because anglers will have two tags available for use instead of one. The department disagrees with the comments and responds that stock assessments indicate that oversize red drum constitute less than 3% of the total harvest; therefore, populations can easily withstand significant additional angling pressure. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the public is accustomed to the rule the way it is and there is no beneficial reason to change it. The department disagrees with the comment and responds that since there is no biological reason to continue to prohibit the simultaneous possession of both a red drum tag and a bonus red drum tag, there is no reason to retain the rule. No changes were made as a result of the comment.
The department received 13 comments supporting adoption of the proposed amendment to §57.971 regarding possession of red drum tags.
No groups or associations commented in support of or opposition to adoption of the proposed amendment to §57.971 regarding possession of red drum tags.
The department received four comments opposing the adoption of the portion of the proposed amendment to §57.981 that creates a new definition for "residence."
Three commenters stated that the term "residence" should include temporary accommodations such as hotels and lodges, because otherwise people are restricted to two daily bag limits (one possession limit) before they must take the fish to a permanent residence, eat the fish, or transfer the fish to another person. The department disagrees with the comment and responds that bag and possession limits are established to protect aquatic wildlife resource populations from overharvest. Based on current levels of angling pressure, allowing temporary accommodations to function as final destinations would result in elevated, sustained negative impacts on fish populations, since every angler would be able to retain an unlimited number of daily bag limits. If the department were to include temporary accommodations as final destinations, it might be necessary to reduce bag limits on certain species in order to prevent overharvest, which is undesirable. The department also notes that the rule as adopted does not alter the current prohibition on the use of temporary accommodations as final destinations. No changes were made as a result of the comments.
The department received 25 comments supporting adoption of the proposed amendment to §57.981 that creates a new definition for "residence."
No groups or associations commented in support of or opposition to adoption of the proposed amendment to §57.981 that creates a new definition for "residence."
The department received no comments opposing adoption of the portion of the proposed amendment to §57.973 that implements Community Fishing Lake harvest regulations on Canyon Lake Project #6 in Lubbock County.
The department received seven comments supporting adoption of the proposed amendment to §57.973 that implements Community Fishing Lake harvest regulations on Canyon Lake Project #6 in Lubbock County.
No groups or associations commented in support of or opposition to adoption of the proposed amendment to §57.973 that implements Community Fishing Lake harvest regulations on Canyon Lake Project #6 in Lubbock County.
The department received no comments opposing adoption of the portion of the proposed amendments to §57.971 and §57.973 that affect handfishing.
The department received 10 comments supporting adoption of the proposed amendments to §57.971 and §57.973 that affect handfishing.
No groups or associations commented in support of or opposition to adoption of the proposed amendment to §57.971 and §57.973 that affect handfishing.
The department received four comments opposing adoption of the portion of the proposed amendment to §57.976 that establishes an offense for possessing in state waters aquatic wildlife resources that were illegally taken in federal waters. Of the four commenters, three offered a reason or rationale for opposing adoption. Those comments, accompanied by the department response to each, follow.
One commenter opposed adoption and stated that state game wardens should enforce only state laws, that it is difficult to determine that a resource has been illegally taken in federal waters, and that federal laws are too conservative, ridiculous, and unrealistic. The department disagrees with the comment and responds that Texas game wardens are commissioned to enforce federal law and do so on a routine basis. The rule is necessary because federal prosecutors, due to crowded venues, cannot prosecute every case brought to them by Texas game wardens. The department believes that this leads to a belief by some people that resource laws can be violated in federal waters with little chance of being prosecuted. Because the resource is a shared resource, the department believes that ultimately, disregard for the law in federal waters harms the resources in state waters. The department further responds that state game wardens will be able to effectively determine if resources have been taken illegally. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the federal rules in the Exclusive Economic Zone are not based on science. The department neither agrees nor disagrees with the comment and responds that the rule is intended to address an enforcement issue and is not intended to address the federal rulemaking process. No changes were made as a result of the comment.
One commenter opposed adoption and stated that state district courts are just as overwhelmed as federal courts and that the department should encourage federal prosecutors to increase their enforcement efforts. The department disagrees with the comment and responds that the offense created by the amendment is a Class C Misdemeanor and would be heard in a Justice of the Peace court rather than a state district court. The rule as adopted would not impact the department's ability to file cases in federal court, but would provide an alternative. No change was made as a result of the comment.
The department received 16 comments supporting adoption of the proposed amendment to §57.976 that establishes an offense for possessing in state waters aquatic wildlife resources that were illegally taken in federal waters.
The Port Aransas Boatmen's Association opposed adoption of the proposed amendment to §57.976 that establishes an offense for possessing in state waters aquatic wildlife resources that were illegally taken in federal waters.
No groups or associations commented in support of adoption of the proposed amendment to §57.976 that establishes an offense for possessing in state waters aquatic wildlife resources that were illegally taken in federal waters.
The department received one comment opposing adoption of the portion of the proposed amendment to §57.981 that affects largemouth bass regulations on Lake Jacksonville. The commenter stated that anglers should not be able to retain fish smaller than 18 inches in length for any purpose. The department disagrees with the comment and responds that mortalities incidental to temporary retention will not be numerous enough to negatively impact fish populations. No changes were made as a result of the comment.
The department received 11 comments supporting adoption of the proposed amendment to §57.981 that affects largemouth bass regulations on Lake Jacksonville.
No groups or associations commented in support of or opposition to adoption of the proposed amendment to §57.981 that affects largemouth bass regulations on Lake Jacksonville.
The department received no comments opposing adoption of the portion of the proposed amendment to §57.981 that affects largemouth bass regulations on Kurth Reservoir.
The department received seven comments supporting adoption of the proposed amendment to §57.981 that affects largemouth bass regulations on Kurth Reservoir.
No groups or associations commented in support of or opposition to adoption of the proposed amendment to §57.981 that affects largemouth bass regulations on Kurth Reservoir.
DIVISION 1. GENERAL PROVISIONS
31 TAC §§57.971 - 57.973, 57.976
The amendments are adopted under the authority of Parks and Wildlife Code, §46.0085, which authorizes the department to prescribe the form and manner of issuance of the licenses and tags authorized by Chapter 46; Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; §66.115, which authorizes the commission to promulgate regulations concerning handfishing; and §67.004, which 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.
§57.976.Importation of Aquatic Animal Life.
(a) No person may import into this state or possess an aquatic wildlife resource taken outside this state, unless the person possessing the aquatic wildlife resource produces upon demand by a game warden a valid fishing, or other applicable license, stamp, tag, permit, or document for the state or country in which the wildlife resource was legally taken.
(b) A person possessing a wildlife resource under this section must produce upon demand by a game warden a valid driver's license or personal identification certificate.
(c) Any person may possess a wildlife resource killed outside this state that is listed in this state as threatened or endangered, provided the person possesses proof that the animal or bird was lawfully killed.
(d) No person in this state may possess an aquatic wildlife resource taken in the Exclusive Economic Zone in violation of any applicable federal law, including but not limited to aquatic resources taken:
(1) during a closed season provided by federal law;
(2) within a protected length limit or in excess of the daily bag limit established by federal law;
(3) with any gear or device prohibited by federal law; or
(4) without a license or permit required by federal law.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 29, 2013.
TRD-201302203
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2013
Proposal publication date: February 22, 2013
For further information, please call: (512) 389-4775
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; and §67.004, which 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 29, 2013.
TRD-201302204
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2013
Proposal publication date: February 22, 2013
For further information, please call: (512) 389-4775
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; and §67.004, which 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 29, 2013.
TRD-201302205
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2013
Proposal publication date: February 22, 2013
For further information, please call: (512) 389-4775
SUBCHAPTER A. STATEWIDE HUNTING PROCLAMATION
The Texas Parks and Wildlife Commission in a duly noticed meeting on March 28, 2013, adopted the repeal of §65.30; amendments to §§65.3, 65.34, and 65.40; and new §65.30, concerning the Statewide Hunting Proclamation, without changes to the proposed text as published in the February 22, 2013, issue of the Texas Register (38 TexReg 1117).
The repeal of §65.30, concerning Pronghorn Antelope Permit, is necessary to adopt new §65.30.
The amendment to §65.3, concerning Definitions, removes the definition of "agent" and adds a definition of "landowner." Under current rule, the term "agent" is defined as "a person authorized to act on behalf of the landowner," but the term "landowner" is not defined. The amendment defines the term "landowner" as "any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner's agent." The intent of the amendment is to make clear to whom the terms "landowner" and "agent" refer for purposes of compliance and enforcement.
New §65.30, concerning Pronghorn Antelope Permit, sets forth the method the department utilizes to determine and allot the harvest of pronghorn antelope and the places and conditions under which permits issued under the section are valid. Under Parks and Wildlife Code, §61.057, no person may hunt an antelope without first having acquired an antelope permit issued by the department. Under Parks and Wildlife Code, §61.051, the department is required to conduct scientific studies and investigations of game animals to determine, among other things, supply, sex ratios, and the effects of any factors or conditions causing increases or decreases in supply. Under Parks and Wildlife Code, §61.052, the commission is required to regulate the means, methods, places, and periods of time when it is lawful to hunt or possess game animals. In general, the new section preserves the contents of current §65.30 and makes conforming changes necessary to accommodate the amendment to §65.40, which allows the hunting of buck pronghorn antelope in certain places by means of a permit obtained directly from the department rather than from a landowner.
The amendment to §65.34, concerning Managed Lands Deer Permits (MLDP)--Mule Deer, extends the period of validity of MLDPs for mule deer to the last Sunday in January. The MLDP permit program was expanded to include mule deer in 2005. Unlike the MLDP program for white-tailed deer, which allows hunting from October until February, the mule deer MLDP permit period of validity was established to run concurrently with the season for white-tailed deer (the first Sunday in November to the first Sunday in January). Since its inauguration, the program has steadily grown. The number of cooperators has increased by nearly 350% and the acreage under management has nearly tripled. In recent years, the department has been approached by landowners and land managers with the idea of extending the period of validity. The department conducted a significant outreach effort over the past year and has determined that there is support for an extension of the mule deer MLDP period of validity.
The amendment to §65.40, concerning Pronghorn Antelope: Open Seasons and Bag Limits, implements an experimental season for the take of buck pronghorn antelope in certain areas of the state. Under Parks and Wildlife Code, §61.057, no person may hunt an antelope without first having acquired an antelope permit issued by the department. Under Parks and Wildlife Code, §61.051, the department is required to conduct scientific studies and investigations of game animals to determine, among other things, supply, sex ratios, and the effects of any factors or conditions causing increases or decreases in supply. Under Parks and Wildlife Code, §61.052, the commission is required to regulate the means, methods, places, and periods of time when it is lawful to hunt or possess game animals. Under current rule, the take of all pronghorn antelope is by permit only. The department manages pronghorn antelope populations by the concept of the "herd unit." A herd unit is an area containing similar pronghorn densities (during the timeframe of population surveys) and habitats. Some herd units are bounded by natural or man-made barriers that prevent or inhibit immigration/emigration. Other herd units are bounded by man-made infrastructure that facilitates a descriptive boundary but does allow immigration/emigration. The department conducts population surveys and collects harvest data annually to determine the percentage of each herd unit that may be harvested each year without causing depletion or waste. Permits are then issued to landowners, who distribute them to hunters at their discretion. Over the last 10-15 years, pronghorn antelope populations in portions of the northern Panhandle have increased steadily and continue to expand their range. As a result, permit demand has increased and staff time accommodating that demand has increased accordingly. The amendment would implement an experimental season in three herd units where staff believe that buck populations can sustain additional hunting pressure. The current bag limit and season length would be retained; however, no permits for buck pronghorn antelope would be issued to the landowners. Instead, the harvest of buck pronghorn antelope would be at the discretion of the landowner. In order to measure the impact of the experiment and to assist law enforcement personnel in identifying lawfully taken pronghorn antelope, the amendment also requires hunters to obtain a permit from the department and attach it to harvested bucks and to present each harvested buck at a check station. The amendment is intended to reduce the amount of time spent on permit issuance by staff, increase hunter opportunity, and provide greater convenience for landowners, hunters, and outfitters.
The amendment to §65.3 will function by providing definitive meanings for words and terms used in the subchapter.
New §65.30 will function by establishing the conditions under which buck pronghorn antelope may be hunted in certain herd units.
The amendment to §65.34 will function by lengthening the period of validity for MLDP for mule deer.
The amendment to §65.40 will function by establishing documentation and tagging requirements for the take of buck pronghorn antelope in specified areas of the state.
The department received two comments opposing adoption of the amendment to §65.34, concerning Managed Lands Deer Permits (MLDP)--Mule Deer. One commenter articulated a rationale or reason for opposing adoption. The commenter stated that the properties in the MLDP program for mule deer were too small and that harvest during the rut would cause overharvest of bucks. The department disagrees with the comment and responds that MLDP issuance for buck and antlerless deer on any property is predicated on a mandatory department-approved wildlife management plan (WMP) for the property. The WMP takes into account the size of the property, habitat conditions, and population indices to formulate a biologically sound harvest quota for that property. The harvest of antlerless mule deer is already controlled by means of a permit system; the department issues those permits on a very conservative basis. However, there is no limitation on the number of buck mule deer that a landowner may allow to be harvested on non-MLDP property. Therefore, MLDP permit issuance is actually a limitation on the number of buck deer that can be harvested. As a result, the department is confident that overharvest is not a concern. No changes were made as a result of the comment.
The department received 21 comments supporting adoption of the proposed amendment.
The department received two comments opposing the adoption of amended §65.40, concerning Pronghorn Antelope: Open Seasons and Bag Limits. Both commenters articulated specific reasons or rationales for opposing adoption. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that allowing landowner-controlled harvest of buck pronghorn will result in overharvest and a decline in trophy-quality bucks. The department disagrees with the comment and responds that harvest within the experimental area will be closely monitored; if the department determines that depletion of the resource is occurring, the experimental season will be eliminated. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department is trying to "take over" antelope populations that belong to the landowners. The department disagrees with the comment and responds that under Parks and Wildlife Code, §1.011, all wild animals (including pronghorn antelope) are the property of the people of the state. Under Parks and Wildlife Code, Chapter 61, the department is required to provide open seasons if scientific investigations and findings of fact reveal that they may be safely provided. Chapter 61 also authorizes the Texas Parks and Wildlife Commission to establish the periods of time when it is lawful to hunt, take, or possess pronghorn antelope; the means, methods, and places in which it is lawful to hunt, take, or possess pronghorn antelope; the quantity, age or size, and, to the extent possible, the sex of the pronghorn antelope to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where pronghorn antelope may be hunted, taken, or possessed. In addition, hunting without landowner consent continues to be an offense. No changes were made as a result of the comment.
The department received 10 comments supporting adoption of the proposed amendment.
DIVISION 1. GENERAL PROVISIONS
The amendments and new section are adopted under the authority of Parks and Wildlife Code, Chapter 42, which allows the department to issue tags for animals during each year or season; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 29, 2013.
TRD-201302206
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2013
Proposal publication date: February 22, 2013
For further information, please call: (512) 389-4775
The repeal is adopted under the authority of Parks and Wildlife Code, Chapter 42, which allows the department to issue tags for animals during each year or season; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 29, 2013.
TRD-201302207
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2013
Proposal publication date: February 22, 2013
For further information, please call: (512) 389-4775
The amendment is adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed, and §42.0177, which authorizes the commission to modify or eliminate the tagging requirements of §§42.018, 42.0185, or 42.020, or other similar tagging requirements in Chapter 42.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 29, 2013.
TRD-201302208
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2013
Proposal publication date: February 22, 2013
For further information, please call: (512) 389-4775