TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 51. EXECUTIVE

SUBCHAPTER O. ADVISORY COMMITTEES

31 TAC §51.613, §51.614

The Texas Parks and Wildlife Department (the department) proposes new §51.613 and §51.614, concerning Advisory Committees. The new rules would establish the Urban Outreach Advisory Committee and the Accessibility Advisory Committee.

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. Over the years, the department has established a number of advisory committees to provide the department with informed opinion regarding various aspects and dimensions of the department's mission. The department believes that these advisory committees perform a valuable service for the department and the people of Texas.

A majority of Texans now live in urban areas, making it more important than ever that the department be aware of and include urban populations in developing the strategies to execute the department's mission to protect and conserve our natural and cultural heritage. Therefore, the department has determined that it is prudent to establish an urban outreach advisory committee to provide the department with informed assistance in furtherance of the department's goals with respect to impacts on and contributions from urban populations in the state.

Proposed new §51.613 would create the Urban Outreach Advisory Committee, provide for the membership and focus of the committee and establish an expiration date (which is required by statute). The focus of the committee would be the range of department programs and initiatives affecting urban populations, the demographic variety of urban populations in the state, and the conservation and management organizations that serve urban populations.

Similarly, the department is committed to ensuring that its facilities and programs not only comply with legal requirements affecting persons with disabilities, but to meaningful engagement with that community to gather information and gain understanding of the unique challenges faced by the members of that community in order to make the department's sites, facilities, services, and programs as accessible as possible.

Proposed new §51.614 would create the Accessibility Advisory Committee, provide for the membership and focus of the committee and establish an expiration date (which is required by statute). The committee would be composed of a range of persons affected by disabilities and/or special needs who are interested in issues of accessibility to department sites, facilities, or programs, as well as conservation and management organizations with an interest in or focus on advocacy for disabled persons. The focus of the committee would be the interests of persons with disabilities and/or special needs in the context of department operations and initiatives.

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

Ms. Bright also has determined that for each of the first five years that the rules as proposed are in effect, 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 to assist the department in achieving its mission.

There will be no adverse economic effect on persons required to comply with the rules as proposed, since the rule affects only the department.

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, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact "to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

The department has determined that the rules will not affect small businesses, micro-businesses, or rural communities. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

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.

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

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.

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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; will create a new regulation (to create the advisory committees); not expand, limit, or repeal an existing regulation; neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Ann Bright at (512) 389-8558, e-mail: ann.bright@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

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

The proposed new sections affect Parks and Wildlife Code, §11.0162.

§51.613.Urban Outreach Advisory Committee (UOAC).

(a) The UOAC is created to advise the department on issues relevant to the department's mission and goals with respect to urban populations in Texas.

(b) The UOAC membership shall consist of not more than 24 persons representing a cross-section of the urban areas in the following metropolitan areas:

(1) Dallas;

(2) Fort Worth;

(3) Greater Houston;

(4) Austin;

(5) San Antonio; and

(6) El Paso.

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

(d) The UOAC shall expire on July 1, 2022.

§51.614.Accessibility Advisory Committee (AAC).

(a) The AAC is created to advise the department on matters related to the accessibility of department programs, sites, facilities, and services by persons with disabilities and/or special needs.

(b) The AAC membership shall consist of, at a minimum, nine persons who are affected directly or indirectly by disabilities and/or special needs, including, but not limited to:

(1) members of the following communities:

(A) deaf or hearing-impaired;

(B) blind or visually impaired;

(C) intellectually or developmentally impaired;

(D) emotionally or behaviorally impaired; and

(2) representatives of conservation and management organizations with an interest in or focus on advocacy for disabled persons.

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

(d) The AAC shall expire on July 1, 2022.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000509

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 389-4775


CHAPTER 57. FISHERIES

SUBCHAPTER N. STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION

The Texas Parks and Wildlife Department proposes amendments to §§57.973, 57.981, 57.992, 57.993, and 57.997, concerning the Statewide Recreational and Commercial Fishing Proclamations.

The proposed amendment to §57.973, concerning Devices, Means and Methods would add a section of Brushy Creek (Williamson County) to the list of locations where game and non-game fishes can only be taken by pole and line and would limit anglers to the use of no more than two pole-and-line devices at the same time. The stream segment affected by the proposed amendment is from the Brushy Creek Reservoir dam downstream to the Williamson/Milam county line (approximately 50 miles). Brushy Creek Reservoir currently is subject to this regulation. A survey of anglers who use both the reservoir and creek waters determined that both waters are heavily used, and some anglers fished both in one day. The proposed amendment would standardize regulations on the reservoir and the creek downstream, which should simplify compliance and enforcement. Additionally, the cities surrounding these water bodies recently have experienced rapid population growth and restriction of harvest methods to pole and line would serve to limit the harvest of some fishes such as sunfish, which could benefit the overall fish community and the angling experience.

The proposed amendment to §57.981, concerning Bag, Possession and Length Limits would implement changes to harvest regulations for largemouth bass, crappie, and catfish on multiple locations.

The proposed amendment to §57.981 would modify harvest regulations for largemouth bass on Moss Lake (Cooke County), replacing the current regulation (14-inch minimum length limit and five-fish daily bag limit) with a 16-inch maximum length limit and providing an exception for temporary possession of bass 24 inches or greater for possible submission to the department's ShareLunker program. Moss Lake is a 1,140-acre impoundment located in near Gainesville. The bass fishery at the reservoir currently consists of largemouth and spotted bass, but angler creel surveys indicate largemouth bass are the most sought-after species. While bass are relatively abundant in the reservoir, electrofishing surveys indicate that very few legal-size (14 inches) largemouth bass are present in the population. Although surveys indicate few legal-size largemouth bass, the reservoir does support some large bass, with a few exceeding eight pounds. Spotted bass are abundant, with few exceeding 14 inches in length and samples consist mostly of fish less than 12 inches in length. Spotted bass compete with largemouth bass for forage and contribute to an overabundance of bass less than 12 inches in length. Implementation of a 16-inch maximum length limit on largemouth bass would allow anglers to harvest the abundant smaller fish that potentially could be causing fewer bass to reach larger sizes. Since some anglers have difficulty in distinguishing spotted bass from largemouth bass, opening harvest to all small bass would allow anglers to harvest both species without differentiation.

The proposed amendment to §57.981 also would modify harvest regulations for largemouth bass on Brushy Creek Reservoir and blue and channel catfish in the section of Brushy Creek (both in Williamson County) mentioned previously in this rulemaking. Harvest of largemouth bass in the reservoir is low. The current 18-inch minimum length limit is not benefitting the bass population and implementation of a 14-inch minimum length limit will have little impact. As noted previously in this rulemaking with respect to proposed changes to device restrictions, the standardization of regulations between the reservoir and Brushy Creek will enhance compliance and enforcement.

Additionally, the proposed amendment would replace the current harvest regulations for blue and channel catfish for Brushy Creek Reservoir (12-inch minimum length limit and 25-fish daily bag limit) with a five-fish daily bag limit and no minimum length limit. This type of regulation is appropriate in high-use situations, such as smaller urban water bodies, to allow anglers to harvest some fish while distributing the available harvest to as many anglers as possible. Replacing the current regulation would result in standardization of regulations and beneficial harvest reduction.

The proposed amendment to §57.981 also would modify harvest regulations for black and white crappie for Lake Nasworthy, which is a 1,380-acre reservoir in San Angelo (Tom Green County). The reservoir has a relatively stable water level for West Texas and abundant shoreline access. The crappie population in Lake Nasworthy has long been characterized by high abundance, slow growth, below average condition, and poor size structure. Slower growth results in fewer crappie reaching legal size, as most crappie die of natural causes before growing large enough to be harvested. The combination of these factors negates any advantages to the population structure that could be derived from the use of a minimum length limit (MLL). Understandably, anglers are dissatisfied with lack of harvestable sized fish in the reservoir and have expressed support for modifying harvest regulations to allow for some take of crappie less than 10 inches in length. An increased harvest of smaller crappie may reduce overcrowding, improve fish condition, and increase angler satisfaction.

The proposed amendment to §57.981 also would make changes to the harvest regulations for blue, channel, and flathead catfish on Lake Texoma (Cooke and Grayson counties) and the Texas waters of the Red River from the dam on Lake Texoma (Denison Dam) downstream to Shawnee Creek. Harvest regulations on Lake Texoma, a 74,686-acre reservoir that straddles the Texas/Oklahoma border, are implemented cooperatively by TPWD and the Oklahoma Department of Wildlife Conservation (ODWC). Currently, harvest regulations for game fishes are the same on both sides on the reservoir. However, some harvest regulations on the Red River below Lake Texoma differ from those on the reservoir and from Texas statewide harvest regulations. With the goal of standardizing regulations on both sides of Lake Texoma and the waters of the Red River below the Denison Dam while maintaining angling opportunities, the proposed amendment would alter harvest regulations for blue, channel, and flathead catfish Texas waters of Lake Texoma and the Red River from Denison Dam downstream to Shawnee Creek. For blue and channel catfish, the proposed amendment would eliminate the minimum length limit and allow the harvest of one blue catfish 30 inches or greater. For flathead catfish, the proposed amendment would eliminate the minimum length limit and impose a five-fish daily bag limit.

The proposed amendment also would eliminate a time constraint on a special regulation governing the harvest of alligator gar on Falcon International Reservoir (Starr and Zapata counties). The department conducted a comprehensive study at the reservoir in 2014 to obtain the biological information necessary to make management recommendations for alligator gar. In 2015, the Texas Parks and Wildlife Commission implemented a bag limit of five alligator gar on the reservoir, directed staff to monitor the alligator gar population to determine any negative effects of the five-fish daily bag, and placed an expiration date on the special provision of September 1, 2020. Monitoring data from the reservoir continues to support the determination that the Falcon Reservoir alligator gar population can be sustained under the five-fish daily bag. Therefore, the proposed amendment would continue the effectiveness of the special provision.

Finally, the proposed amendment would alter recreational harvest regulations for flounder. On the basis of pronounced downward trends in fishery independent data (bag seines, bay trawls, gill nets) which showed declines in catch-per-unit-effort (abundance), and declining commercial and recreational landings, the department has determined that measures must be implemented to protect and replenish spawning stock biomass in the fishery. Recent department fishery-independent gill net survey monitoring data for both the fall and the spring have shown decreases in catch rates of 60% or greater compared to historic long-term data trends. Additionally, other fishery-independent data (bag seines and bay trawls) also show similar declining trends. These independent data collections target flounder at different points in the life cycle and thus provide a measure of recruitment (bag seines), sub-adults (bay trawls) and adults (gill nets).

Lower levels of recruitment observed in fisheries-dependent bag seines may also be impacted by the warmer water temperatures experienced in the bays and gulf in more recent years. Research into the cultivation of flounder has shown that optimal larval survival of flounder is dependent on a very narrow range of temperatures from 16° C - 20° C (60.8° F- 68.0° F) for the first three weeks after spawn (usually in November to December). Current flounder harvest regulations consist of a 14-inch minimum length, a five-fish daily bag and possession limit for recreational take, and a 30-fish commercial daily bag and possession limit for commercial take, except for during the period from November 1-December 14, when there is a two-fish daily bag and possession limit for both recreational and commercial take. During the month of November, means of take is limited to pole-and-line only. The proposed amendment would increase the minimum length limit to 15 inches and close the season from November 1 - December 14 for both commercial and recreational harvest. At 14 inches, approximately 50% of female flounder are sexually mature. At 15 inches, over 90% of females are sexually mature. Reducing flounder harvest prior to and during the fall migration will increase escapement of adults to the Gulf and can increase the potential spawning population; and therefore, increase recruitment. Additionally, the increase in minimum size will allow more females to reach sexual maturity and spawn before being harvested. Since most of the flounder harvest is comprised of females and occurs during spawning, the proposed amendments are projected to increase spawning stock biomass.

The proposed amendment to §57.992, concerning Bag, Possession, and Length Limits, would alter commercial harvest regulations for flounder, for the same reasons presented earlier in this preamble in the discussion of recreational harvest regulations for flounder.

The proposed amendment to §57.993, concerning Commercial Harvest Report, would clarify reporting requirements. The department has determined that the rule as currently worded does not make clear that certain licensees are required to report all aquatic products taken under the respective licenses, not just the portion of aquatic product that is sold subsequent to landing. The purpose of the rule is to give the department accurate harvest data on various species, which is then used to inform the department's management decisions on those species. Obviously, if the entirety of commercial harvest is not reported the department's management decisions could be affected.

The proposed amendment to §57.997 would affect provisions concerning licensing requirements for the Paddle Craft All-Water Guide License. The proposed amendment would remove existing language concerning the successful completion of the "Four Star Leader Sea Kayak" training from the British Canoe Union and "Coastal Kayak Day Trip Leading" from the American Canoe Association and replace it with "paddle craft leading course from the American Canoe Association or a department-approved organization." The training courses referenced in the current rule no longer exist and the department seeks to use a generic reference to avoid having to engage in rulemaking each time a course is discontinued or renamed.

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

There will be adverse economic effects on certain persons required to comply with the rules as proposed. Those impacts are addressed in the analysis of impacts to small business and microbusiness elsewhere in this preamble.

Mr. Macdonald also has determined that for each of the first five years that the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rules will be the dispensation of the agency's statutory duty to protect and conserve the fisheries resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission's policy to maximize recreational opportunity within the precepts of sound biological management practices.

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), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impacts to small businesses, micro-businesses, or rural communities. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

The department has determined that the proposed amendments other than those affecting the commercial take of flounder regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest fisheries resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required for those provisions.

The proposed amendment to §57.992 will exert an adverse economic impact on small or micro-businesses that catch and sell flounder. Based on the last three years of reporting data, the department estimates that 25 licensees could be affected by the proposed amendment. For the purposes of this analysis, the department assumes that all entities directly affected by the proposed amendment are small or microbusinesses. The proposed amendment would affect licensees who directly target flounder for harvest and those who harvest flounder as bycatch (incidental to other harvest operations).

The proposed amendment would increase the minimum size limit for flounder to 15 inches and close the fishery from November 1 to December 14. Currently, during the November 1-30 closure the bag limit is two fish. Department reporting data indicate that between November 1 and December 14, 2017, nine finfish fishing licensees reported 29 trips, resulting in the landing of 468 pounds of flounder with an average reported sale price of $4.66 per pound. Between November 1 and December 14, 2018, five finfish fishing licensees reported 23 trips, resulting in the landing of 964 pounds of flounder at an average reported sale price of $4.41 per pound. Between November 1 and December 14, 2019, 11 finfish fishermen reported 26 trips, resulting in the landing of 346 pounds of flounder at an average reporting price of $4.39 per pound. Using these data, the department estimates that the probable average economic impact of the proposed rule on small and micro-businesses for licensees taking flounder under a finfish fisherman's license would be a loss of between $138.09 and $850.25 per licensee. The average loss for the three-year period is therefore estimated at $410.22 per licensee, assuming future fishing effort, catch rates, and sales prices remain similar to historic activities.

There will also be adverse economic impacts for licensees who land flounder as incidental catch (bycatch). The probable adverse economic impacts for these licensees would be less than those for the holders of a finfish fisherman's license (i.e., less than $410.22) because bycatch aboard shrimp vessels is limited by law to 50 percent by weight of other catch on board, plus a recreational bag limit; thus for any trip where bycatch is landed the limit would have been limited to 2 fish per trip.

Because licensees would be able to shift fishing effort to times outside of the proposed closed season, the department believes that the adverse economic impacts identified in this analysis could be reduced or eliminated.

The department considered and analyzed several alternatives to the proposed rule. The department considered: (1) a 20-fish bag limit with no closure; (2) a 15-fish bag limit with no closure; (3) a 10-fish bag limit with no closure; (4) a closure in November with no change to the bag limit; and (5) a closure in November and December with no change to the bag limit. The department also considered a prohibition on gigging as a means of commercial take. These alternatives were rejected because although they would achieve the department's goal of increasing spawning biomass, each would either impose additional hardship on licensees or result in significant disruption to the current status quo regarding the distribution of opportunity between the commercial and recreational sectors and the various methods of take favored by anglers.

The department has determined that the proposed amendments will not result in adverse economic impacts to rural communities.

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.

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

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.

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: neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; create a new regulation (by altering harvest and reporting requirements); not repeal, expand, or limit a regulation; neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Ken Kurzawski (Inland Fisheries) at (512) 389-4591, e-mail: ken.kurzawski@tpwd.texas.gov or Dakus Geeslin (Coastal Fisheries) at (512) 389-8734, e-mail: dakus.geeslin@tpwd.texas.gov. Comments a lso may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

DIVISION 1. GENERAL PROVISIONS

31 TAC §57.973

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

The proposed amendment affects Parks and Wildlife Code, Chapter 61.

§57.973.Devices, Means and Methods.

(a) In fresh water only, it is unlawful to fish with more than 100 hooks on all devices combined.

(b) Game and non-game fish may be taken only by pole and line in or on:

(1) community fishing lakes;

(2) sections of rivers lying totally within the boundaries of state parks;

(3) any dock, pier, jetty, or other manmade structure within a state park;

(4) Brushy Creek (Williamson County) from the Brushy Creek Reservoir dam downstream to the Williamson/Milam county line;

(5) [(4)] Canyon Lake Project #6 (Lubbock County);

(6) [(5)] Lake Pflugerville (Travis County);

(7) [(6)] North Concho River (Tom Green County) from O.C. Fisher Dam to Bell Street Dam;

(8) [(7)] South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam; and

(9) [(8)] Wheeler Branch (Somervell County).

(c) No person may employ more than two pole-and-line devices at the same time on:

(1) any dock, pier, jetty, or other manmade structure within a state park;

(2) community fishing lakes that are not within or part of a state park;

(3) Brushy Creek (Williamson County) from the Brushy Creek Reservoir dam downstream to the Williamson/Milam county line;

(4) [(3)] Canyon Lake Project #6 (Lubbock County);

(5) [(4)] North Concho River (Tom Green County) from O. C. Fisher Dam to Bell Street Dam; and

(6) [(5)] South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam.

(d) - (g) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000512

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 389-4775


DIVISION 2. STATEWIDE RECREATIONAL FISHING PROCLAMATION

31 TAC §57.981

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

The proposed amendments affect Parks and Wildlife Code, Chapter 61.

§57.981.Bag, Possession, and Length Limits.

(a) - (b) (No change.)

(c) There are no bag, possession, or length limits on game or non-game fish, except as provided in this subchapter.

(1) - (4) (No change.)

(5) Except as provided in subsection (d) of this section, the statewide daily bag and length limits shall be as follows.

(A) - (G) (No change.)

(H) Flounder: all species (including hybrids and subspecies).

(i) (No change.)

(ii) Minimum length limit: 15 [14] inches.

(iii) (No change.)

(iv) The season for flounder is closed from November 1 through December 14 [During November, lawful means are restricted to pole-and-line only and the bag and possession limit for flounder is two. For the first 14 days in December, the bag and possession limit is two, and flounder may be taken by any legal means.]

(I) - (X) (No change.)

(d) Exceptions to statewide daily bag, possession, and length limits shall be as follows:

(1) Freshwater species.

(A) - (B) (No change.)

(C) Bass: largemouth.

(i) - (ii) (No change.)

(iii) Lakes Bellwood (Smith County), Davy Crockett (Fannin County), Kurth (Angelina County), Mill Creek (Van Zandt County), Moss (Cooke), Nacogdoches (Nacogdoches County), Naconiche (Nacogdoches County), Purtis Creek State Park (Henderson and Van Zandt counties), and Raven (Walker).

(I) - (II) (No change.)

(iv) Lakes Bright (Williamson County), [Brushy Creek (Williamson County),] Casa Blanca (Webb County), Cleburne State Park (Johnson County), Fairfield (Freestone County), Gilmer (Upshur County), Marine Creek Reservoir (Tarrant County), Meridian State Park (Bosque County), Pflugerville (Travis County), Rusk State Park (Cherokee County), and Welsh (Titus County).

(I) - (II) (No change.)

(v) - (x) (No change.)

(D) - (G) (No change.)

(H) Catfish: channel and blue catfish, their hybrids and subspecies.

(i) - (v) (No change.)

(vi) Lake Texoma (Cooke and Grayson counties) and the Red River (Grayson County) from Denison Dam to and including Shawnee Creek (Grayson County).

(I) (No change.)

(II) Minimum length limit: No limit [12 inches.]

(III) (No change.)

(vii) Brushy Creek (Williamson County) from the Brushy Creek Reservoir dam downstream to the Williamson/Milam county line, Canyon Lake Project #6 (Lubbock County), North Concho River (Tom Green County) from O.C. Fisher Dam to Bell Street Dam, and South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam.

(I) - (II) (No change.)

(viii) - (x) (No change.)

(I) Catfish: flathead.

(i) Lake Texoma (Cooke and Grayson counties) and the Red River (Grayson County) from Denison Dam to and including Shawnee Creek (Grayson County).

(I) (No change.)

(II) Minimum length limit: No limit [20 inches.]

(ii) (No change.)

(J) Crappie: black and white crappie their hybrids and subspecies.

(i) - (iii) (No change.)

(iv) Lake Nasworthy (Tom Green County).

(I) Daily bag limit: 25 (in any combination).

(II) Minimum length limit: No limit.

(III) Possession limit is 50.

(K) (No change.)

(L) Gar, alligator.

(i) Falcon International Reservoir (Starr and Zapata counties).

(I) - (III) (No change.)

[(IV) The provisions of this subparagraph expire on September 1, 2020.]

(ii) - (iii) (No change.)

(M) - (P) (No change.)

(2) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000513

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 389-4775


DIVISION 3. STATEWIDE COMMERCIAL FISHING PROCLAMATION

31 TAC §§57.992, 57.993, 57.997

The amendments are proposed under the authority of Parks and Wildlife Code, §47.004, which authorizes the commission to adopt rules governing the issuance and use of a resident fishing guide license, including rules creating separate resident fishing guide licenses for use in saltwater and freshwater.

The proposed amendments affect Parks and Wildlife Code, Chapter 47.

§57.992.Bag, Possession, and Length Limits.

(a) (No change.)

(b) There are no bag, possession, or length limits on game fish, non-game fish, or shellfish, except as otherwise provided in this subchapter.

(1) - (3) (No change.)

(4) The statewide daily bag and length limits for commercial fishing shall be as follows.

(A) - (D) (No change.)

(E) Flounder: all species (including hybrids and subspecies).

(i) (No change.)

(ii) Minimum length limit: 15 [14] inches.

(iii) (No change.)

(iv) The season for flounder is closed from November 1 through December 14[During November, lawful means are restricted to pole-and-line only and the bag and possession limit for flounder is two. For the first 14 days in December, the bag and possession limit is two, and flounder may be taken by any legal means].

(F) - (N) (No change.)

§57.993.Commercial Harvest Report.

(a) Definitions. For the purposes of this section, the following terms shall have the following meanings:

(1) Applicable license--a general commercial fishermen's license, a commercial finfish fishermen's license, commercial shrimp boat captain's license, commercial crab fishermen's license, commercial oyster boat captain's license, individual bait dealer's license, or commercial vessel owner's license; [and]

(2) Land--to bring to shore after harvest;

(3) [(2)] Reportable activity--[means]each instance in which an aquatic product taken under an applicable license is landed or transferred to another person[for purposes of sale or processing or holding for eventual sale].

(b) Except for aquatic products transferred to a licensed dealer identified [as provided] in subsection (e) of this section, it is an offense for any person who lands [takes] an aquatic product taken under an applicable license to fail to submit a complete and accurate commercial harvest report to the department by the 10th day of each month following the month in which a reportable activity occurred.

(c) - (d) (No change.)

(e) A report under this section is not required for aquatic products that are sold by the holder of an applicable license [licensee] to a licensed wholesale or retail fish dealer, bait dealer, or bait shrimp dealer.

§57.997.Fishing Guide License Requirements.

(a) - (c) (No change.)

(d) No person may be issued a Paddle Craft All-Water Guide license unless the person possesses proof that the person has successfully completed:

(1) - (2) (No change.)

[(3) the "Four Star Leader Sea Kayak" training from the British Canoe Union; or]

(3) [(4)] a paddle craft leading course from the American Canoe Association or another department-approved course ["Coastal Kayak Day Trip Leading"].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000514

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 389-4775


CHAPTER 65. WILDLIFE

SUBCHAPTER A. STATEWIDE HUNTING PROCLAMATION

DIVISION 1. GENERAL PROVISIONS

31 TAC §65.3, §65.24

The Texas Parks and Wildlife Department proposes amendments to §65.3 and §65.24, concerning the Statewide Hunting Proclamation. The department is in the process of automating the application and issuance procedures for pronghorn antelope and antlerless mule deer permits, which has until this point been manual. To do so efficiently and cost-effectively, the department has determined that those processes should first be defined by rule in order to provide a definitive, permanent structure before programming begins.

The proposed amendment to §65.3, concerning Definitions, would add definitions for "herd unit," "buck pronghorn," and "pronghorn." "Herd unit" would be defined as "a discrete geographical area designated by the department for the purpose of population monitoring and permit issuance with respect to pronghorn," which is necessary to create an unambiguous meaning for the basic management context utilized by the department for pronghorn. The proposed amendment also would define "pronghorn" as "pronghorn antelope (Antilocapra americana)." Parks and Wildlife Code, Chapter 63, designates the "pronghorn antelope" as a game species; however, the animal is not a true antelope. Additionally, the department believes it is less cumbersome to simply refer to the animal as a pronghorn. Therefore, the definition is necessary to establish that the word "pronghorn" means the pronghorn antelope established by statute as a game animal. The proposed amendment also would define "buck pronghorn" as "a pronghorn with black cheek patches below the ears," which is necessary because certain harvest rules in the subchapter have a narrow application to male pronghorn (bucks), which are distinguishable by their unique markings. Finally, the proposed amendment relocates the definition for "pre-charged pneumatic" in order to preserve the alphabetic order of the section.

The proposed amendment to §65.24, concerning Permits, would set forth the application requirements and conditions for the issuance of pronghorn and antlerless mule deer permits. The proposed amendment would alter subsection (a) to allow for multiple landowners to combine multiple tracts of land to create an aggregate acreage for permit issuance and utilization. By allowing acreages to be combined, the department hopes to increase hunting opportunity and encourage resource management; however, because mule deer are very mobile and can travel substantial distances within their home ranges, the department employs a conservative harvest philosophy for the doe segment of the mule deer population. In order to ensure that harvest is not concentrated to a deleterious extent in one or two areas, the proposed rule would require tracts of land within an aggregate acreage to be contiguous, which is necessary to distribute hunting pressure and harvest across a geographical range. Proposed new subsection (d) would require all permit applications to be submitted electronically and establish application deadlines. The purpose of automation is to relieve staff of burdensome, time-consuming administrative labor, which allows more time that can be devoted to other job duties. Therefore, use of the automated system must be mandatory in order to achieve maximal efficiency. Additionally, deadlines must be established in order to establish smooth workflows.

Proposed new subsection (e) would require landowners who receive permits to maintain a daily harvest log and prescribe the information that must be contained in the daily harvest log (name of hunter, driver's license or customer number, date of kill, location of kill). A daily harvest log is necessary to allow the department to verify that permits are being lawfully utilized.

Finally, the proposed amendment would require landowners to enter harvest data by a deadline following the end of permit validity. The submitted data is used by the department to inform and guide future management decisions.

Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

Mr. Wolf also has determined that for each of the first five years that the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rules will be the dispensation of the agency's statutory duty to protect and conserve the resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission's policy to maximize recreational opportunity within the precepts of sound biological management practices.

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

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), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to determine if any further analysis is required. The department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

The department has determined that the proposed rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest wildlife resources in this state and, therefore, do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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.

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

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.

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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; create a new regulation (the rules governing permit application and issuance); not repeal, expand, or limit an existing regulation; neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Shawn Gray at (432) 837-2051, e-mail: shawn.gray@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

The proposed amendments affect Parks and Wildlife Code, Chapter 61.

§65.3.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this chapter shall have the meanings assigned in the Texas Parks and Wildlife Code.

(1) - (10) (No change.)

[(11) Pre-charged pneumatic--An air gun or arrow gun for which the propellant is supplied or introduced by means of a source that is physically separate from the air gun or arrow gun.]

(11) [(12)] Buck deer--A deer having a hardened antler protruding through the skin.

(12) Buck pronghorn--A pronghorn with black cheek patches below the ears.

(13) - (18) (No change.)

(19) Herd unit--A discrete geographical area designated by the department for the purpose of population monitoring and permit issuance with respect to pronghorn.

(20) [(19)] Landowner--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.

(21) [(20)] Lawful archery equipment--Longbow, recurved bow, and compound bow.

(22) [(21)] License year--The period of time for which an annual hunting license is valid.

(23) [(22)] Muzzleloader--Any firearm that is loaded only through the muzzle.

(24) [(23)] Permanent residence--One's domicile. This does not include a temporary abode or dwelling such as a hunting/fishing club, or any club house, cabin, tent, or trailer house used as a hunting/fishing club, or any hotel, motel, or rooming house used during a hunting, fishing, pleasure, or business trip.

(25) [(24)] Possession limit--The maximum number of a wildlife resource that may be lawfully possessed at one time.

(26) Pre-charged pneumatic--An air gun or arrow gun for which the propellant is supplied or introduced by means of a source that is physically separate from the air gun or arrow gun.

(27) Pronghorn--A pronghorn antelope (Antilocapra americana).

(28) [(25)] Silencer or sound-suppressing device--Any device that reduces the normal noise level created when the firearm is discharged or fired.

(29) [(26)] Spike-buck deer--A buck deer with no antler having more than one point.

(30) [(27)] Unbranched antler--An antler having no more than one antler point.

(31) [(28)] Unbranched antlered deer--A buck deer having at least one unbranched antler.

(32) [(29)] Upper-limb disability--A permanent loss of the use of fingers, hand or arm in a manner that renders a person incapable of using a longbow, compound bow or recurved bow.

(33) [(30)] Wildlife resources--Alligators, all game animals, and all game birds.

(34) [(31)] Wounded deer--A deer leaving a blood trail.

§65.24.Permits.

(a) Except as specifically provided in this subchapter, permits and tags issued under the provisions of this subchapter shall be issued only to the landowner. Multiple landowners may combine multiple tracts of land to create an aggregate acreage for issuance of pronghorn or antlerless mule deer permits; however, tracts of land aggregated for purposes of antlerless mule deer permit issuance must be contiguous.

(b) - (c) (No change)

(d) All applications for issuance of pronghorn permits or antlerless mule deer permits shall be submitted electronically via a department system designated for that purpose on or before the deadline specified in this subsection. The deadline for submission of applications for:

(1) pronghorn permits is July 1; and

(2) antlerless mule deer permits is September 1.

(e) A landowner to whom a pronghorn or antlerless mule deer permit is issued shall maintain a legible daily harvest log on a tract of land for which the permit is issued.

(1) The daily harvest log shall be on a form provided or approved by the department and shall be maintained by the landowner until the last day of permit validity.

(2) A person who kills a pronghorn or antlerless mule deer that is required by a provision of this subchapter to be tagged shall, on the same day that the pronghorn or antlerless mule deer is killed, legibly enter the required information in the daily harvest log.

(A) The daily harvest log shall contain the following information for each pronghorn or antlerless mule deer killed on the enrolled tract of land:

(i) the name and customer or driver's license number of the person who killed the pronghorn or antlerless mule deer;

(ii) the date the pronghorn or antlerless mule deer was killed;

(iii) the location where the pronghorn or antlerless mule deer was killed; and

(iv) the pronghorn or antlerless mule deer permit number of the permit affixed to the pronghorn or antlerless mule deer, as appropriate.

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

(f) A person to whom the department has issued pronghorn or antlerless mule deer permits shall submit a harvest report electronically via a department system designated for that purpose.

(1) For pronghorn, the harvest report shall be submitted by no later than October 31 of the year of permit issuance. The report shall contain the number of buck and/or doe pronghorn killed in addition to any other information required by the department.

(2) For antlerless mule deer, the harvest report shall be submitted by no later than January 15 of the year following the year of permit issuance. The report shall contain the number of antlerless mule deer killed in addition to any other information required by the department.

(g) [(d)] No state-issued permit is required to hunt antlerless white-tailed deer on a National Wildlife Refuge.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000516

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 389-4775


SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

DIVISION 1. CHRONIC WASTING DISEASE (CWD)

31 TAC §65.81, §65.82

The Texas Parks and Wildlife Department proposes amendments to §65.81 and §65.82, concerning Disease Detection and Response. The proposed amendments are intended to replace emergency rules affecting Subchapter B, Division 1, which were published in the January 10, 2020, issue of the Texas Register (45 TexReg 243), as well as to respond to another detection of CWD in Medina County.

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 (referred to collectively as 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 commonly known as "Mad Cow Disease"), 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. What is known is that CWD is invariably fatal to certain species of cervids, and it is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant.

The department has engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD is confirmed, within which the possession and movement of live deer under department permits is restricted, and harvested deer are required to be presented at check stations to be tested for CWD. In 2016, those rules were modified (41 TexReg 7501) in response to additional CWD discoveries in the Texas Panhandle and Medina County, creating additional Surveillance Zones (SZs) and an additional Containment Zone (CZ) in West Texas. The rules were amended again in 2017 in response to a subsequent positive test result in Medina County.

On December 18, 2019, the department received confirmation that a 5.5 year-old female white-tailed deer killed in Val Verde County had tested positive for CWD. Accordingly, the department adopted rules on an emergency basis to create a CZ and an SZ in Val Verde County. This proposed rulemaking would replace the emergency rule, which has a limited duration by law, with permanent rules.

On January 28, 2020, the department received confirmation that a 4.5-year-old male white-tailed deer and a 3.5-year-old female white-tailed deer killed in Medina County had tested positive for CWD. The location of the mortalities necessitates a conforming change to the boundaries of current CZ 3.

The proposed amendment to §65.81, concerning Containment Zones; Restrictions, would create new CZ 4 in a portion of Val Verde County and slightly expand current CZ 3 in Medina and Uvalde counties. A CZ is a specific location in which CWD has been detected or the department has determined, using the best available science and data, that CWD detection is probable. With respect to the CZ that would be established by this rulemaking, the department determined that for any given location at which CWD has been detected in a free-ranging white-tailed deer, the highest probability of detection would be within approximately a five-mile radius from the approximate location where the deer was harvested. Although the CZ designation imposes mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer, it is not necessary for hunters to be aware of or concerned with CZ boundaries, since the CZ is wholly within an SZ where mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer also apply.

The proposed amendment to §65.82, concerning Surveillance Zones; Restrictions, would create new SZ 4 in a portion of Val Verde County surrounding proposed new CZ 4. An SZ is a department-defined geographic area in this state within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected. In this case, the SZ represents an approximately 15-mile buffer around CZ 4, within which the movement of live deer is restricted and presentation of harvested deer at department check stations is mandatory. The boundaries of proposed new CZ 4 have been tailored to as much as possible follow recognizable features such as roadways and power line rights-of-way, and the department notes that any designation of a CZ or SZ is always accompanied by a robust public awareness effort.

Clayton Wolf, Wildlife Division Director, 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 and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of disease management activities will administer and enforce the rules as part of their current job duties and resources.

Mr. Wolf also has determined that for each of the first five years the new rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduction of the probability of CWD being spread from locations where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

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

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 because the proposed rules affecting Val Verde County will not result in any direct economic effect on any small businesses, micro-businesses, or rural community, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

Although there is one deer breeder facility that would be included within the altered CZ in Medina and Uvalde counties created by the proposed amendment, that facility contains no deer and cannot accept new deer because it has been designated non-movement qualified (NMQ) under the provisions of Subdivision 2 of this subchapter. Therefore, the portion of the proposed amendment to §65.81 that affects Medina and Uvalde counties also will not result in any direct economic effect on any small businesses, micro-businesses, or rural communities.

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 result in direct impacts to local economies.

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

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 new rules. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

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 neither create nor eliminate a government program; will not result in an increase or decrease in the number of full-time equivalent employee needs; will not result in a need for additional General Revenue funding; not affect the amount of any fee; will not create a new regulation; will expand an existing regulation (by creating new areas subject to the rules governing CZs and SZs), but will otherwise not limit or repeal an existing regulation; will neither increase nor decrease the number of individuals subject to regulation; and will not positively or adversely affect the state's economy.

Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department's website at www.tpwd.texas.gov.

The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapters R and R-1, which authorize the commission to establish the conditions of a deer management permit for white-tailed and mule deer, respectively; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

§65.81.Containment Zones; Restrictions.

The areas described in paragraph (1) of this section are CZs.

(1) Containment Zones.

(A) - (B) (No change.)

(C) Containment Zone 3 is that portion of the state lying within the area designated as Containment Zone 3 as depicted in the following figure, more specifically described by the following latitude-longitude coordinate pairs: -99.29398096800, 29.63444908360; -99.29332773120, 29.63427752770; -99.29197515170, 29.63439690090; -99.28980120500, 29.63446380410; -99.28762690610, 29.63440631430; -99.28546157340, 29.63422467720; -99.28331448540, 29.63391967310; -99.28119484540, 29.63349260780; -99.27911173640, 29.63294531180; -99.27707408560, 29.63228013080; -99.27509062400, 29.63149991510; -99.27316985040, 29.63060800860; -99.27131999510, 29.62960823290; -99.26954898230, 29.62850487190; -99.26786439810, 29.62730265490; -99.26627345800, 29.62600673210; -99.26478297540, 29.62462265680; -99.26339933220, 29.62315635870; -99.26212845190, 29.62161412050; -99.26097577450, 29.62000254920; -99.25994623180, 29.61832854980; -99.25904422740, 29.61659929130; -99.25852031490, 29.61543045890; -99.25566836700, 29.60863858110; 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-99.30693374200, 29.63516616700; -99.30476946900, 29.63535738300; -99.30259551100, 29.63542449400; -99.30042118300, 29.63536721200; -99.29825580700, 29.63518578300; -99.29610866000, 29.63488098300; -99.29398894600, 29.63445412100.]

Figure: 31 TAC §65.81(1)(C) (.pdf)

[Figure: 31 TAC §65.81(1)(C)]

(D) Containment Zone 4: That portion of the state lying within the boundaries of a line beginning in Val Verde County at the International Bridge and proceeding northeast along Spur 239 to U.S. 90; thence north along U.S. 90 to the intersection of U.S. 277/377, thence north along U.S. 277/377 to the U.S. 277/377 bridge at Lake Amistad (29.496183°, -100.913355°), thence west along the southern shoreline of Lake Amistad to International boundary at Lake Amistad dam, thence south along the Rio Grande River to the International Bridge on Spur 239.

(E) [(D)] Existing CZs may be modified and additional CZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

(2) (No change.)

§65.82.Surveillance Zones; Restrictions.

The areas described in paragraph (1) of this section are SZs.

(1) Surveillance Zones.

(A) - (C) (No change.)

(D) Surveillance Zone 4: That portion of the state lying within a line beginning in Val Verde County at the confluence of Sycamore Creek and the Rio Grande River (29.242341°, -100.793906°); thence northeast along Sycamore Creek to U.S. 277; thence northwest on U.S. 277 to Loop 79; thence north along Loop 79 to the Union Pacific Railroad; thence east along the Union Pacific Railroad to Liberty Drive (north entrance to Laughlin Air Force Base); thence north along Liberty Drive to U.S. 90; thence west along U.S. 90 to Loop 79; thence north along Loop 79 to the American Electric Power (AEP) Ft. Lancaster-to-Hamilton Road 138kV transmission line (29.415542°, -100.847993°); thence north along the AEP Ft. Lancaster-to-Hamilton Road 138kV transmission line to a point where the AEP Ft. Lancaster-to-Hamilton Road 138kV transmission line turns northwest (29.528552°, -100.871618°); thence northwest along the AEP Ft. Lancaster-to-Hamilton Road 138kV transmission line to the AEP Ft. Lancaster-to-Hamilton Road maintenance road (29.569259°, -100.984758°); thence along the AEP Ft. Lancaster-to-Hamilton Road maintenance road to Spur 406; thence northwest along Spur 406 to U.S. 90; thence south along U.S. 90 to Box Canyon Drive; thence west along Box Canyon Drive to Bluebonnet Drive; thence southwest along Bluebonnet Drive to Lake Drive; thence south along Lake Drive to Lake Amistad (29.513298°, -101.172454°), thence southeast along the International Boundary to the International Boundary at the Lake Amistad dam; thence southeast along the Rio Grande River to the confluence of Sycamore Creek (29.242341°, -100.793906°).

(E) [(D)] Existing SZs may be modified and additional SZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

(2) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000517

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 389-4775


SUBCHAPTER N. MIGRATORY GAME BIRD PROCLAMATION

31 TAC §§65.314 - 65.320

The Texas Parks and Wildlife Department (the department) proposes amendments to §§65.314 - 65.320, concerning the Migratory Game Bird Proclamation.

The United States Fish and Wildlife Service (Service) issues annual frameworks for the hunting of migratory game birds in the United States. Regulations adopted by individual states may be more restrictive than the federal frameworks but may not be less restrictive. Responsibility for establishing seasons, bag limits, means, methods, and devices for harvesting migratory game birds within Service frameworks is delegated to the Texas Parks and Wildlife Commission (Commission) under Parks and Wildlife Code, Chapter 64, Subchapter C.

The proposed amendments would specify the season dates and bag limits for the 2020-2021 migratory game bird seasons. The remainder of the amendments, with the exceptions addressed later in this preamble, would retain the season structures and bag limits for all migratory game birds from last year and serve only to adjust the season dates to allow for calendar shift (i.e., to ensure that seasons open on the desired day of the week, since dates from a previous year do not fall on the same days in following years).

The exceptions are as follows.

The proposed amendment to §65.315, concerning Ducks, Coots, Mergansers, and Teal, will reduce the bag limit for scaup from three to one in compliance with the federal frameworks. The commission cannot modify or alter the mandates of the federal frameworks.

The proposed amendment to §65.316, concerning Geese, would open the light and dark goose seasons in the Western Zone one week later than has been the case in the past and reduce the daily bag limit for light geese in both goose zones from 20 birds to 10 birds. The department has noticed a gradual shift in migration chronology in that part of the state, characterized by the later arrival of large numbers of geese in the Western Zone and believes that moving the opening date will result in greater hunter opportunity. The proposed amendment also necessitates a conforming change to the traditional opening day of the Light Goose Conservation Order as well. The bag limit reduction is necessitated by continuing concerns about long-term declines in wintering populations of light geese, especially along the Texas coast. Department data indicate that populations of wintering light geese in Texas have declined by over 50% since 1970, and although a variety of factors are believed to be responsible, primarily habitat loss, the department believes that a reduction in the daily bag limit is warranted.

The proposed amendment to §65.319, concerning Gallinules, Rails, Snipe, and Woodcock, would open the season for snipe two weeks later than in years past. Hunter survey data indicate a preference for a later season, and the department does not believe that moving the opening date to a later time will result in negative population impacts.

Clayton Wolf, Wildlife Division Director, has determined that for the first five years that the amendments as proposed are in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the rules as proposed.

Mr. Wolf also has determined that for each of the first five years the proposed rules are in effect, the public benefit anticipated as a result of enforcing the rules as proposed will be the department's discharge of its statutory obligation to manage and conserve the state's populations of migratory game birds for the use and enjoyment of the public, consistent with the principles of sound biological management.

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), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small and micro-businesses and rural communities. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to determine if any further analysis is required. The department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

The department has determined that the proposed rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest migratory game bird resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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

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.

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

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.

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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; not create a new regulation, but replace existing regulations; not expand or limit an existing regulation, but will replace existing regulations; neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

Comments on the proposed rules may be submitted to Shaun Oldenburger (Small Game/ Bird Program Director) at (512) 389-4778, e-mail: shaun.oldenburger@tpwd.texas.gov. or via the department website at www.tpwd.texas.gov.

The amendments are proposed under Parks and Wildlife Code, Chapter 64, which authorizes the Commission and the Executive Director to provide the open season and means, methods, and devices for the hunting and possessing of migratory game birds.

The proposed amendments affect Parks and Wildlife Code, Chapter 64.

§65.314.Doves (Mourning, White-Winged, White-Tipped, White-Fronted Doves).

(a) (No change.)

(b) Seasons; Daily Bag Limits.

(1) North Zone.

(A) Dates: September 1 - November 12, 2020 and December 18, 2020 - January 3, 2021 [September 1 - November 12, 2019 and December 20, 2019 - January 5, 2020].

(B) (No change.)

(2) Central Zone.

(A) Dates: September 1 - November 1, 2020 and December 18, 2020 - January 14, 2021 [September 1 - November 3, 2019 and December 20, 2019 - January 14, 2020].

(B) (No change.)

(3) South Zone and Special White-winged Dove Area.

(A) Dates: September 5, 6, 12, and 13, 2020; September 14 - November 1, 2020; and December 18, 2020 - January 23, 2021 [September 1, 2, 7, and 8, 2019; September 14 - November 3, 2019; and December 20, 2019 - January 23, 2020].

(B) Daily bag limit:

(i) on September 5, 6, 12, and 13, 2020 [September 1, 2, 7, and 8, 2019]; 15 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than two mourning doves and two white-tipped (white-fronted) doves per day.

(ii) from September 14 - November 1, 2020; and December 18, 2020 - January 23, 2021 [September 14 - November 3, 2019 and December 20, 2019 - January 23, 2020]; 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped (white-fronted) doves per day.

§65.315.Ducks, Coots, Mergansers, and Teal.

(a) (No change.)

(b) Season dates and bag limits.

(1) HPMMU.

(A) For all species other than "dusky ducks": October 31 - November 1, 2020 and November 6, 2020 - January 31, 2021 [October 26 - 27, 2019 and November 1, 2019 - January 26, 2020]; and

(B) "dusky ducks": November 9, 2020 - January 31, 2021 [November 4, 2019 - January 26, 2020].

(2) North Zone.

(A) For all species other than "dusky ducks": November 14 - 29, 2020 and December 5, 2020 - January 31, 2021 [November 9 - December 1, 2019 and December 7, 2019 - January 26, 2020]; and

(B) "dusky ducks": November 19 - 29, 2020 and December 5, 2020 - January 31, 2021 [November 14 - December 1, 2019 and December 7, 2019 - January 26, 2020].

(3) South Zone.

(A) For all species other than "dusky ducks": November 7 - 29, 2020 and December 12, 2020 - January 31, 2021 [November 2 - December 1, 2019 and December 14, 2019 - January 26, 2020]; and

(B) "dusky ducks": November 12 - 29, 2020 and December 12, 2020 - January 31, 2021 [November 7 - December 1, 2019 and December 14, 2019 - January 26, 2020].

(4) September teal-only season.

(A) During the September teal-only special season, the season is closed for all species of ducks other than teal ducks (blue-winged, green-winged, and cinnamon).

(B) Dates: September 12-27, 2020 [14 - 29, 2019].

(c) Bag limits.

(1) The daily bag limit for ducks is six, which may include no more than five mallards (only two of which may be hens); three wood ducks; one [three] scaup (lesser scaup or [and] greater scaup [in the aggregate ]); two redheads; two canvasbacks; one pintail; and one "dusky" duck (mottled duck, Mexican like duck, black duck and their hybrids) during the seasons established for those species in this section. For all species not listed, the daily bag limit shall be six. The daily bag limit for coots is 15. The daily bag limit for mergansers is five, which may include no more than two hooded mergansers.

(2) (No change.)

§65.316.Geese.

(a) (No change.)

(b) Season dates and bag limits.

(1) Western Zone.

(A) Light geese: November 14, 2020 - February 14, 2021 [November 2, 2019 - February 2, 2020]. The daily bag limit for light geese is 10 [20], and there is no possession limit.

(B) Dark geese: November 14, 2020 - February 14, 2021 [November 2, 2019 - February 2, 2020]. The daily bag limit for dark geese is five, to include no more than two white-fronted geese.

(2) Eastern Zone.

(A) Light geese: November 7, 2020 - January 31, 2021 [November 2, 2019 - January 26, 2020]. The daily bag limit for light geese is 10 [20], and there is no possession limit.

(B) Dark geese:

(i) Season: November 7, 2020 - January 31, 2021 [November 2, 2019 - January 26, 2020];

(ii) (No change.)

(c) September Canada goose season. Canada geese may be hunted in the Eastern Zone during the season established by this subsection. The season is closed for all other species of geese during the season established by this subsection.

(1) Season dates: September 12 - 27, 2020 [September 14 - 29, 2019].

(2) (No change.)

(d) Light Goose Conservation Order. The provisions of paragraphs (1) - (3) of this subsection apply only to the hunting of light geese. All provisions of this subchapter continue in effect unless specifically provided otherwise in this section; however, where this section conflicts with the provisions of this subchapter, this section prevails.

(1) - (3) (No change.)

(4) Season dates.

(A) From February 1 - March 14, 2021 [January 27 - March 15, 2020], the take of light geese is lawful in the Eastern Zone.

(B) From February 15 - March 14, 2021 [February 3 - March 15, 2020], the take of light geese is lawful in the Western Zone.

§65.317.Special Youth-Only Waterfowl Season.

There shall be a Special Youth-Only Season for waterfowl, during which the hunting, taking, and possession of geese, ducks, mergansers, and coots is restricted to licensed hunters 16 years of age and younger accompanied by a person 18 years of age or older, except for persons hunting by means of falconry under the provisions of §65.320 of this title (relating to Extended Falconry Seasons).

(1) HPMMU:

(A) season dates: October 24 - 25, 2020 [October 19 - 20, 2019];

(B) (No change.)

(2) North Duck Zone:

(A) season dates: November 7 - 8, 2020 [November 2 - 3, 2019];

(B) (No change.)

(3) South Duck Zone:

(A) season dates: Special youth-only season: October 31 - November 1, 2020 [October 26 - 27, 2019];

(B) (No change.)

§65.318.Sandhill Crane.

(a) (No change.)

(b) Season dates and bag limits.

(1) Zone A: October 31, 2020 - January 31, 2021 [October 26, 2019 - January 26, 2020]. The daily bag limit is three.

(2) Zone B: November 27, 2020 - January 31, 2021 [November 22, 2019 - January 26, 2020]. The daily bag limit is three.

(3) Zone C: December 19, 2020 - January 24, 2021 [December 14, 2019 - January 19, 2020]. The daily bag limit is two.

§65.319.Gallinules, Rails, Snipe, Woodcock.

(a) Gallinules (moorhen or common gallinule and purple gallinule) may be taken in any county during the season established in this subsection.

(1) Season dates: September 12 - 27 and November 7 - December 30, 2020 [September 14 - 29, 2019 and November 2 - December 25, 2019].

(2) (No change.)

(b) Rails may be taken in any county in this state during the season established by this subsection.

(1) Season dates: September 12 - 27 and November 7 - December 30, 2020 [September 14 - 29, 2019 and November 2 - December 25, 2019].

(2) (No change.)

(c) Snipe may be taken in any county of the state during the season established by this subsection.

(1) Season dates: November 7, 2020 - February 21, 2021 [October 26, 2019 - February 9, 2020].

(2) (No change.)

(d) Woodcock may be taken in any county of the state during the season established by this subsection.

(1) Season dates: December 18, 2020 - January 31, 2021 [December 18, 2019 - January 31, 2020].

(2) (No change.)

§65.320.Extended Falconry Seasons.

It is lawful to take the species of migratory birds listed in this section by means of falconry during the seasons established by this section.

(1) Mourning doves, white-winged doves and white-tipped doves: November 20 - December 6, 2020 [November 16 - December 2, 2019].

(2) Duck, gallinule, moorhen, rail, and woodcock: February 1 - February 15, 2021 [January 27 - February 9, 2020].

(3) - (4) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 10, 2020.

TRD-202000518

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 22, 2020

For further information, please call: (512) 389-4775