TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 57. FISHERIES

SUBCHAPTER N. STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION

The Texas Parks and Wildlife Department proposes the repeal of §57.979 and amendments to §§57.972, 57.981, and §57.992, concerning the Statewide Recreational and Commercial Fishing Proclamations.

The repeal of §57.979, concerning Temporary Exception to Bag, Possession, and Length Limits for king mackerel, would repeal a rule that was promulgated to provide maximum angler opportunity in the wake of an unanticipated federal action and is no longer necessary, as the provisions were incorporated in §57.981 and §57.992 during rulemaking last year.

The proposed amendment to §57.972, concerning General Rules, would provide for a department-administered public drawing to select applicants to take alligator gar of greater than 48 inches in length on a specific segment of the Trinity River, subject to the restrictions set forth in the proposed amendment to §57.981. As discussed in greater detail later in this preamble, the department continues to be concerned about alligator populations. The proposed amendment would provide a method for distributing a limited, controlled harvest of large alligator gar by means of a fair and impartial method, subject to determinations made by the department. The proposed amendment to §57.981, concerning Bag, Possession and Length Limits would implement a series of changes to largemouth bass harvest regulations on multiple reservoirs.

Over the last two years, the department's Inland Fisheries Division has conducted an extensive evaluation of largemouth bass harvest regulations across the state with the goal of reducing regulatory complexity where possible. The primary goal was to reduce the number of water bodies where harvest regulations are exceptions to the statewide standards (14-inch minimum length limit, five-fish daily bag limit) and consolidate additional water bodies under existing exceptions without confounding existing management goals and objectives. As part of that effort, the proposed amendment to §57.981 would reduce the minimum length limit for largemouth bass on Lake Conroe (Montgomery and Walker counties) from 16 inches to 14 inches. The proposed amendment would eliminate that final water body where the 16-inch minimum for largemouth bass is imposed, further reducing the complexity of largemouth bass regulations. An extensive evaluation of the largemouth bass population and fishery at Lake Conroe over the last year indicated a change to the 14-inch limit would likely result in a small reduction of 16-inch and larger bass and a general shift towards smaller fish. Anglers may experience a similar reduction in catch of 16-inch and larger fish. However, staff expects Lake Conroe will continue to provide quality fishing experiences and maintain its capacity for producing desirable fish under the statewide 14-inch limit.

The proposed amendment to §57.981 also would implement harvest regulations for largemouth bass on Lake Lakewood (Williamson County), consisting of an 18-inch minimum length limit and three-fish daily bag limit. Lake Lakewood is a 47-acre impoundment located in Leander. The City of Leander acquired land along the northern shore of the reservoir to convert into a public nature park. The department has worked with park staff to ensure free public access to the lake for anglers and paddlers. Adequate populations of game fish and forage species were confirmed during an electrofishing survey conducted in spring 2017. The size structure for largemouth bass indicated the presence of quality-size fish, with some fish surpassing 18 inches. The proposed amendment (which would implement harvest regulations differing from the statewide standards of 14-inch minimum length and five-fish daily bag limit) is designed to protect larger fish that would become highly vulnerable to harvest once the park opens. Similar lakes in the Austin area have benefited from this protective approach and have been able to sustain quality largemouth bass catches for years (Bright Lake and Brushy Creek Reservoir). Lake Lakewood has the potential to provide excellent largemouth bass fishing to a growing paddling and bank angling constituency in the greater Austin area.

The proposed amendment to §57.981 also would eliminate the 14- to 21-inch slot length limit for largemouth bass on Mill Creek Lake (Van Zandt County) and implement a 16-inch maximum length limit with an exception allowing for possession and weighing of bass 24 inches or greater for possible submission to ShareLunker program. Mill Creek Reservoir is a 237-acre reservoir located within the city limits of Canton. The 14- to 21-inch slot-length limit was introduced on Mill Creek Reservoir in 1991, and at that time, the daily bag limit was three fish. The five-fish daily bag limit, with one fish 21 inches or greater, was established in September 1996 to increase abundance and catch of largemouth bass 14-21 inches while allowing limited harvest of fish larger than 21 inches. Recent improvements in habitat are anticipated to improve survival of largemouth bass and prey fishes. Abundant small largemouth bass and threadfin shad were collected in an electrofishing assessment performed in July 2018. The department and the City of Canton are working cooperatively on a long-range plan to improve fishing access for bank anglers by constructing small floating piers, clearing areas where vegetation obstructs bank access, and positioning fish attractors accessible to bank anglers. The maximum length limit of 16 inches should increase abundance of largemouth bass by providing protection to large bass currently vulnerable to harvest (21 inches or larger in length) with little or no change to abundance or size structure of bass less than 16 inches. If some small fish are harvested, reduced intraspecific competition could lead to increased growth rates.

The proposed amendment to §57.981 also would expand the area in southeast Texas under the 12-inch minimum length limit for largemouth bass. Under current rules, there is minimum length limit of 12 inches for largemouth bass in Chambers, Galveston, Jefferson, and Orange counties (including any public waters that form boundaries with adjacent counties) and on the Sabine River from Toledo Bend dam downstream to a line across Sabine Pass between Texas Point and Louisiana Point (Newton and Orange counties). The proposed amendment would add Hardin County, Newton County (excluding Toledo Bend Reservoir), and Liberty County (south of U.S. Highway 90). The proposed amendment is intended to provide more uniform harvest regulations for bass populations with similar life histories in that region of the state, which should enhance and simplify compliance and enforcement.

The proposed amendment also would modify the harvest regulations for largemouth and Alabama bass on Alan Henry Reservoir (Garza County) by removing Alabama bass from the current regulation (five-fish daily bag of which only two bass less than 18 inches may be harvested). The harvest regulations for Alabama bass would revert to the statewide limits (no length limit and five-fish daily bag in combination with largemouth bass). Alan Henry Reservoir was originally stocked with largemouth and smallmouth bass, and later with Alabama bass. Alabama bass are native to Mobile River drainage in Alabama, Georgia, and Mississippi. This species attains larger sizes than spotted bass native to Texas and other states, and that trend is observed when this species is stocked outside its native range. This species seems to do best in highland reservoirs with water fluctuations, which was the reason for the experimental stocking in Alan Henry Reservoir. The goal of the proposed amendment is to redistribute the harvest and produce largemouth bass and Alabama bass longer than 18 inches. Because Alan Henry is the only lake with Alabama bass, the proposed amendment, if adopted, would eliminate a statewide exception and further simplify the harvest regulations for bass.

The proposed amendment also would implement a 48-inch maximum length limit for alligator gar on the Trinity River and tributary waters extending from the I-30 bridge in Dallas County downstream to the I-10 bridge in Chambers County, require mandatory reporting for all alligator gar harvested statewide except for Falcon International Reservoir (Zapata and Starr counties), and prohibit the take of alligator gar by lawful archery equipment or crossbow or the possession of alligator gar taken by those means at night (the period of time from one half-hour after sunset to one half-hour before sunrise). The department continues to be concerned about harvest of alligator gar in the Trinity River and other areas. The proposed amendment would implement a 48-inch maximum length limit for any gar taken on the Trinity River from the I-30 bridge in Dallas County downstream to the I-10 bridge in Chambers County, including the East Fork of the Trinity River and all tributaries upstream to the Lake Ray Hubbard dam. The 48-inch length limit would protect enough spawning-aged females to reproduce and provide a sufficient supply of large, recreationally-valuable fish for anglers to catch in the Trinity River. Additionally, the proposed amendment would require any person harvesting an alligator gar in public water to report the harvest within 24 hours via the department's website or mobile application. Because relatively few alligator gar can be sustainably harvested each year and interest in alligator gar fishing has increased, the department has determined that it is prudent to closely monitor harvest numbers and locations, information that cannot be obtained by any method other than mandatory reporting. Falcon Reservoir has a more robust population of alligator gar, and harvest information is not needed to manage that particular population. Unregulated commercial fishing in the Mexico waters of Falcon International Reservoir makes this a challenging location to manage for protection of large alligator gar. The proposed amendment also would prohibit the harvest of alligator gar at night by means of lawful archery equipment or crossbow, and the possession of alligator gar taken at night by those means. Concerns continue about the rapid evolution of technology and equipment used to target large alligator gar, and this is a proactive measure taken, in an abundance of caution, to protect gar populations rather than waiting for an emergency. The proposed amendment also consolidates all special provisions regarding alligator gar in subsection (d)(1)(L).

With respect to saltwater species, the proposed amendment to §65.981 would increase the minimum size limit for cobia, from 37 inches to 40 inches. The Gulf of Mexico Fishery Management Council recently chose to change the commercial and recreational minimum size limit for Gulf cobia in federal waters to 40 inches. The proposed amendment would make cobia harvest regulations in state waters be consistent with the federal limits, which the department believes will reduce confusion and enhance compliance, administration, and enforcement.

The proposed amendment also would eliminate the current bag limit differential for spotted seatrout and implement a universal five-fish bag in all state waters. In 2007, the department became concerned about spotted seatrout populations in the Lower Laguna Madre and created regional regulations for seatrout, reducing the bag and possession limits for spotted seatrout in the Lower Laguna Madre. In 2014, the department altered the boundary of that regional regulation and reinstated a coastwide possession limit of twice the daily bag limit. The proposed amendment is in response to persistent angler requests for lower daily bag limits in the areas where the 10-fish daily bag limit is in place. No adverse biological impacts are expected to occur as a result of lowering the limit from 10 to 5. Department survey data indicate that most anglers report harvesting fewer than five fish per day and that more than 75% of guides and nearly 50% of non-guides support lowering the limit from 10 to five fish.

The proposed amendment also imposes new gear requirements on anglers taking sharks with natural bait. To address overfishing and rebuild the Atlantic dusky shark stock, the National Marine Fisheries Service adopted amendments to the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan that include mandating the use of non-offset, non-stainless-steel circle hooks when fishing for sharks in federal waters, except when fishing with artificial lures. The proposed amendment would make shark regulations in state waters consistent with federal regulations, which the department believes will reduce confusion and enhance compliance, administration, and enforcement.

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

Mr. Kurzawski 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.

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 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 amendment to §57.981 regulates 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.

The department also has determined that the proposed amendment to §57.992 will not directly 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.

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

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 (special provisions regarding alligator gar, gear requirements for the take of certain shark species), will repeal a regulation (the temporary King Mackerel rule), expand a regulation (governing bag limits for spotted seatrout), but otherwise will not 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 Ken Kurzawski (Inland Fisheries) at (512) 389-4591, email: ken.kurzawski@tpwd.texas.gov or Dakus Geeslin (Coastal Fisheries) at (512) 389-8734, email: dakus.geeslin@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

DIVISION 1. GENERAL PROVISIONS

31 TAC §57.972

The amendment is proposed under the authority of Parks and Wildlife Code, P&WC §11.0272, which authorizes the department to conduct public drawings to select applicants for public fishing or other special events privileges, and under 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.

§57.972.General Rules.

(a) - (i) (No change.)

(j) Public Drawing for Alligator Gar.

(1) The department may conduct public drawings for the purpose of providing selected applicants with an opportunity to harvest an alligator gar greater than 48 inches in length on the segment of the Trinity River described in §57.981(d)(1)(L)(ii) of this title (relating to Bag, Possession, and Length Limits).

(2) A drawing under this subsection shall be administered by means of a random and impartial method.

(3) Drawings under this subsection are restricted to persons holding a valid recreational fishing license.

(4) An applicant may be selected for a harvest opportunity under this subsection only once between September 1 of one year and August 31 of the following year. A harvest opportunity under this subsection is valid only for the license year in which the drawing was conducted.

(5) Harvest under this subsection may take place at any time, except that harvest by means of lawful archery equipment or crossbow is prohibited between one half-hour after sunset and one half-hour before sunrise. An alligator gar taken under this subsection must be reported within 24 hours of harvest via the department's website or mobile application.

(6) Opportunity under this subsection is not transferable; only persons selected by a drawing under this subsection are authorized to harvest an alligator gar under this subsection.

(7) Drawings held under this subsection shall be subject to determinations made by the department to ensure the sustainability of the alligator gar fishery.

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 4, 2019.

TRD-201900342

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


31 TAC §57.979

The repeal 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 repeal affects Parks and Wildlife Code, Chapter 61.

§57.979.Temporary Exception to Bag, Possession, and Length Limits for King Mackerel.

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 4, 2019.

TRD-201900341

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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, P&WC §11.0272, which authorizes the department to conduct public drawings to select applicants for public fishing or other special events privileges, and under 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.

§57.981.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) - (C) (No change.)

(D) Cobia.

(i) (No change.)

(ii) Minimum length limit: 40 [37] inches.

(iii) (No change.)

(E) - (H) (No change.)

(I) Gar, alligator.

(i) - (iv) (No change).

(v) Any person who takes an alligator gar in the public waters of this state other than Falcon International Reservoir shall report the harvest via the department's website or mobile application within 24 hours of take.

(vi) Between one half-hour after sunset and one half-hour before sunrise, any lawful means other than lawful archery equipment and crossbow may be used to take an alligator gar. No person may take an alligator gar by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise, or possess an alligator gar taken by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise.

(J) - (N) (No change.)

(O) Seatrout, spotted.

(i) Daily bag limit: 5.

[(I) for all waters south of F.M. 457 in Matagorda County: 5;]

[(II) for all waters north of F.M. 457 in Matagorda County: 10.]

(ii) - (iv) (No change.)

(P) Shark: all species (including hybrids and subspecies).

(i) - (iv) (No change.)

(v) Except for the species listed in clause (ii) - (iv) of this subparagraph, sharks may be taken using pole and line, but must be taken by non-offset, non-stainless-steel circle hook when using natural bait.

(Q) - (X) (No change.)

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

(1) Freshwater species.

(A) Bass: largemouth, smallmouth, spotted, and Guadalupe (including their hybrids and subspecies). Devils River (Val Verde County) from State Highway 163 bridge crossing (Bakers Crossing) to the confluence with Big Satan Creek including all tributaries within these boundaries and all waters in the Lost Maples State Natural Area (Bandera County).

(i) Daily bag limit: 0.

(ii) No minimum length limit.

(iii) Catch and release only.

(B) Bass: largemouth[,] and spotted[, and Alabama].

(i) [Lake Alan Henry (Garza County).]

[(I) Daily bag limit: 5 largemouth or Alabama bass in any combination.]

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

[(III) It is unlawful to retain more than two bass of less than 18 inches in length.]

[(ii)] Caddo Lake (Marion and Harrison counties).

(I) Daily bag limit: 8 (in any combination with spotted bass).

(II) Minimum length limit: 14 - 18 inch slot limit (largemouth bass); no limit for spotted bass.

(III) It is unlawful to retain largemouth bass between 14 and 18 inches. No more than 4 largemouth bass 18 inches or longer may be retained. Possession limit is 10.

(ii) [(iii)] Toledo Bend Reservoir (Newton, Sabine, and Shelby counties).

(I) Daily bag limit: 8 (in any combination with spotted bass).

(II) Minimum length limit: 14 inches (largemouth bass); no limit for spotted bass. Possession limit is 10.

(iii) [iv] Sabine River (Newton and Orange counties) from Toledo Bend dam to a line across Sabine Pass between Texas Point and Louisiana Point.

(I) Daily bag limit: 8 (in any combination with spotted bass).

(II) Minimum length limit: 12 inches (largemouth bass); no limit for spotted bass. Possession limit is 10.

(C) Bass: largemouth.

(i) Chambers, Galveston, Hardin, Jefferson, Liberty (south of U.S. Highway 90), Newton (excluding Toledo Bend Reservoir), and Orange counties including any public waters that form boundaries with adjacent counties.

(I) Daily bag limit: 5.

(II) Minimum length limit: 12 inches.

(ii) [Lake Conroe (Montgomery and Walker counties).]

[(I) Daily bag limit: 5.]

[(II) Minimum length limit: 16 inches.]

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

(I) Daily bag limit: 5.

(II) Maximum length limit: It is unlawful to retain largemouth bass of 16 inches or greater in length. Largemouth bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing but may not be removed from the immediate vicinity of the lake. After weighing the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.

(iii) [(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) Daily bag limit: 5.

(II) Minimum length limit: 18 inches.

(iv) [(v)] Bedford Boys Ranch Lake (Tarrant County), Buck Lake (Kimble County), Lake Kyle (Hays County), and Nelson Park Lake (Taylor County).

(I) Daily bag limit: 0.

(II) Minimum length limit: No limit.

(III) Catch and release only.

(v) [(vi)] Lakes Alan Henry (Garza County), Grapevine (Denton and Tarrant counties), Jacksonville (Cherokee County), and O.H. Ivie Reservoir (Coleman, Concho, and Runnels counties).

(I) Daily bag limit: 5.

(II) Minimum length limit: No limit.

(III) It is unlawful to retain more than two bass of less than 18 inches in length.

(vi) [(vii)] Nasworthy (Tom Green)

(I) Daily bag limit: 5.

(II) Minimum length limit: 14 - 18 inch slot limit.

(III) It is unlawful to retain largemouth bass between 14 and 18 inches in length.

(vii) [(viii)] Lakes Athens (Henderson County), Bastrop (Bastrop County), Buescher State Park (Bastrop County), Houston County (Houston County), Joe Pool (Dallas, Ellis, and Tarrant counties), Lady Bird (Travis County), [Mill Creek (Van Zandt County),] Murvaul (Panola County), Pinkston (Shelby County), Timpson (Shelby County), Walter E. Long (Travis County), and Wheeler Branch (Somervell County).

(I) Daily bag limit: 5.

(II) Minimum length limit: 14 - 21 inch slot limit.

(III) It is unlawful to retain largemouth bass between 14 and 21 inches in length. No more than 1 bass 21 inches or greater in length may be retained each day.

(viii) [(ix)] Lakes Fayette County (Fayette County), Fork (Wood Rains and Hopkins counties), Gibbons Creek Reservoir (Grimes County), and Monticello (Titus County).

(I) Daily bag limit: 5.

(II) Minimum length limit: 16 - 24 inch slot limit.

(III) It is unlawful to retain largemouth bass between 16 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.

(ix) Lake Lakewood (Williamson County).

(I) Daily bag limit: 3.

(II) Minimum length limit: 18 inches.

(D) - (K) (No change.)

(L) Gar, alligator.

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

(I) [(i)] Daily bag limit: 5.

(II) [(ii)] No minimum length limit.

(III) [(iii)] No maximum length limit.

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

(ii) On the Trinity River and all tributary waters from the I-30 bridge in Dallas County downstream through Anderson, Ellis, Freestone, Henderson, Houston, Kaufman, Leon, Liberty, Madison, Navarro, Polk, San Jacinto, Trinity, and Walker counties to the I-10 bridge in Chambers County, including the East Fork of the Trinity River and all tributaries upstream to the Lake Ray Hubbard dam, the maximum length limit is 48 inches, except for persons selected by a department-administered drawing authorizing the take of a gar in excess of 48 inches in length.

(iii) During May, no person shall fish for, take, or seek to take alligator gar in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge.

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

(2) Saltwater species. There are no exceptions to the provisions established in subsection (c)(5) of this section.

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 4, 2019.

TRD-201900343

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


DIVISION 3. STATEWIDE COMMERCIAL FISHING PROCLAMATION

31 TAC §57.992

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.

§57.992.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) - (B) (No change.)

(C) Cobia.

(i) Daily bag limit: 2.

(ii) Minimum length limit: 40 [37] inches.

(iii) No maximum length limit.

(D) - (E) (No change.)

(F) Gar, alligator.

(i) Daily bag limit:

(I) On Falcon International Reservoir: 5.

(II) Remainder of the state: 1.

(ii) No minimum length limit.

(iii) No maximum length limit except that on the Trinity River and all tributary waters from the I-30 bridge in Dallas County downstream through Anderson, Ellis, Freestone, Henderson, Houston, Kaufman, Leon, Liberty, Madison, Navarro, Polk, San Jacinto, Trinity, and Walker counties to the I-10 bridge in Chambers County, including the East Fork of the Trinity River and all tributaries upstream to the Lake Ray Hubbard dam, the maximum length limit is 48 inches.

(iv) During May, no person shall fish for, take, or seek to take alligator gar in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge.

(v) any person who takes an alligator gar in the public waters of this state other than Falcon International Reservoir shall report the harvest via the department's website or mobile application within 24 hours of take.

(vi) Between one half-hour after sunset and one half-hour before sunrise, any lawful means other than lawful archery equipment and crossbow may be used to take an alligator gar. No person may take an alligator gar by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise, or possess an alligator gar taken by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise.

(G) - (I) (No change.)

(J) Shark: all species (including hybrids and subspecies).

(i) - (iv) (No change.)

(v) Except for the species listed in clause (ii) - (iv) of this subparagraph, sharks may be taken using pole and line, but must be taken by non-offset, non-stainless-steel circle hook when using natural bait.

(K) - (N) (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 4, 2019.

TRD-201900344

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH

SUBCHAPTER A. STATEWIDE OYSTER FISHERY PROCLAMATION

31 TAC §58.21

The Texas Parks and Wildlife Department proposes an amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

The proposed amendment would rename a reef and prohibit the harvest of oysters for two years at six sites: two sites in Conditionally Approved Area TX-7 in Galveston Bay (Pasadena Reef and Pepper Grove Reef, approximately 56.7 and 4.5 acres, respectively), one site in Conditionally Approved Area TX-20 in Matagorda Bay (Noble Point Reef, 50 acres), and two sites in Approved Area TX-32 in Copano Bay (Sanctuary Reef and Non-Sanctuary Reef, 34.7 and 35.6 acres, respectively). The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of "Conditionally Approved" or "Approved" is determined by DSHS.

The temporary closures will allow for the planting of oyster cultch to repopulate in those areas and enough time for those oysters to reach legal size for harvest. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed.

Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked. Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (Hurricane Ike, September 2008 and Hurricane Harvey, August 2017), as well as high harvest pressure. The department's oyster habitat restoration efforts to date, have resulted in a total of approximately 1,539 acres of oyster habitat returned to productive habitat within these bays.

House Bill 51 (85th Legislature, 2017) included a requirement that certified oyster dealers re-deposit department-approved cultch materials in an amount equal to thirty percent of the total volume of oysters purchased in the previous license year. For the 2018 fiscal year, this will result in the restoration of approximately fifteen acres.

The Copano Bay sites are located in the proximity of Lap Reef and have been degraded due to a variety of stressors. The Nature Conservancy (TNC) secured funding through the Natural Resource Damage Assessment program to restore oyster habitat as a result of damages. The two sites in Copano Bay include 35.6 acres that will be restored on a commercial and recreationally-fished oyster reef that is currently degraded and 34.7 acres that will serve as a sanctuary reef in this heavily fished bay system. The sanctuary reef will be constructed of cultch materials of a size that will limit commercial harvest activities and provide a source of oyster larvae that will colonize other oyster habitat in this bay system.

Noble Point Reef is being designated for closure for the same reason. Meteorological and climatic degradation, along with historical overutilization, has retendered the area incapable of sustaining oyster populations. The department anticipates that depositing cultch and closing the area for two years will result in the establishment of oyster populations that can be commercially and recreationally harvested in the future.

The proposed amendment also would remove geographical descriptions of closed areas that were reopened to commercial and recreational exploitation under the terms of the current rule.

The department designated Todd's Dump Reef in Galveston Bay as a closed site in 2016. The proposed amendment would reauthorize another two-year closure, primarily because the department has determined that oyster development at the site, while encouraging, has not achieved the desired quantity or size to justify opening the site to harvest pressure. The department therefore deposited additional supplemental cultch material, necessitating an additional two-year closure period for spat to attach and grow to legal size in those areas. Additionally, the department discovered that Todd's Dump Reef is an inaccurate name. The name of the actual reef complex is the Pasadena Reef. The proposed amendment would rectify the misnomer.

Finally, the proposed amendment would remove reef complexes for which the two-year period has expired. Those reefs are now open for harvest.

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

Mr. Robinson also has determined that for each of the first five years that the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the proposed rule 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; the execution of the commission's policy to maximize recreational opportunity within the precepts of sound biological management practices; the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach legal size and subsequent recreational and commercial harvest; and providing protection from harvest to a reef complex, thus establishing a continual supply of oyster larvae to colonize oyster habitat within the bay system.

Under 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. 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 because the areas designated for closure have been degraded to the extent that they no longer support any commercial exploitation, the closures effected by the proposed rules will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. The department does note, however, that the three areas previously closed (South Redfish Reef, Texas City 1, and Texas City 2), are now home to healthy populations of oysters that have reached legal size and may be harvested by both recreational and commercial users.

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

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

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

The department has determined that the proposed rule is in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

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, will expand an existing regulation (by creating new area closures), but will not otherwise repeal 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 proposed rule may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650; email: tiffany.hopper@tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.

The amendment is proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.

The proposed amendment affects Parks and Wildlife Code, Chapter 76.

§58.21.Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

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

(c) Area Closures.

(1) (No change.)

(2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A) - (C) [(A) and (B)] of this paragraph cease effect on November 1, 2021 [2018].

(A) Galveston Bay.

(i) Pasadena Reef [Todd's Dump Reef]. The area within the boundaries of a line beginning at 29° 29' 55.4"N, 94° 53' 40.1"W (29.498733°N, -94.894467°W; corner marker buoy A); to 29° 29' 55.4"N, 94° 53' 30.6"W (29.498724°N, -94.891834°W; corner marker buoy B); thence to 29° 29- 46.6"N, 94° 53- 30.4"W (29.496273°N, -94.891768°W; corner marker buoy C); thence to 29° 29' 46.6"N, 94° 53' 40.2"W (29.496273°N, -94.894495°W; corner marker buoy D); and thence back to corner marker buoy A.

(ii) Pepper Grove Reef. The area within the boundaries of a line beginning at 29° 28' 21.1"N, 94° 49' 17.3"W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28' 08.3"N, 94° 49' 00.3"W (29.468971°N, -94.816744°W; corner marker buoy B); thence to 29° 27' 58.9"N, 94° 49' 09.7"W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28' 12.0"N, 94° 49' 26.5"W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A. [South Redfish Reef. The area within the boundaries of a line beginning at 29° 28' 21.1"N, 94° 49' 17.3"W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28' 08.3"N, 94° 49' 00.3"W (29.468971°N, -94.816744°W; corner marker buoy B); thence to 29° 27' 58.9"N, 94° 49' 09.7"W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28' 12.0"N, 94° 49' 26.5"W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A.]

[(iii) Texas City 1 (Mosquito Island). The area of Middle Reef contained area within the boundaries of a line beginning at 29° 23' 52.1"N, 94° 52' 41.3"W (29.397811°N, -94.878138°W; corner marker buoy A); thence to 29° 23' 52.3"N, 94° 52' 39.2"W (29.39786°N, -94.87757°W; corner marker buoy B); thence to 29° 23' 45.1", 95° 52' 37.9"W (29.395867°N, -94.877184°W; corner marker buoy C); thence to 29° 23' 44.9"N, 95° 52' 39.9"W (29.395813°N, -94.877753°W; corner marker buoy D); and thence back to corner marker buoy A.]

[(iv) Texas City 2 (Fishing Pier). The area within the boundaries of a line beginning at 29° 22' 58.2"N, 94° 51' 39.7"W (29.382833°N, -94.861037°W; corner marker buoy A); thence to 29° 22' 57.5"N, 94° 51' 36.2"W (29.382645°N, -94.860069°W; corner marker buoy B); thence to 29° 22' 56.3"N, 94° 51' 36.6"W (29.382301°N, -94.860169°W; corner marker buoy C); thence to 29° 22' 57.0"N, 94° 51' 40.1"W (29.382491°N, -94.861135°W; corner marker buoy D); and thence back to corner marker buoy A.]

(B) Matagorda Bay - Noble Point Reef. The area within the boundaries of a line beginning at 28° 39' 38.79"N, -96° 36' 33.68"W (28.660774°N, -96.609355°W); thence to 28° 39' 38.79"N, -96° 36' 29.15"W (28.660774°N, -96.608098°W); thence to 28° 39' 33.38"N, -96° 36' 33.68"W (28.659270°N, -96.609355°W); thence to 28° 39' 33.38"N, -96° 36' 29.15"W (28.659270°N, -96.608098°W) [Matagorda Bay - Half-Moon Reef. The area within the boundaries of a line beginning at 28° 34' 18.8"N, 96° 14' 08.4"W (28.571889°N, -96.235667°W; corner marker buoy A); thence to 28° 34' 15.7N, 96° 13' 59.4"W (28.571028°N, -96.233167°W; corner marker buoy B); thence to 28° 33' 53.8"N, 96° 14' 19.5W (28.564944°N, -96.23875°W; corner marker buoy C); thence to 28° 33' 57.0"N, 96° 14' 28.5"W (28.565833°N, -96.24125°W; corner marker buoy D); and thence back to corner marker A.]

(C) Copano Bay.

(i) Sanctuary Reef. The area within the boundaries of a line beginning at 28° 8' 33.82"N, -97° 3' 6.47"W (28.142728°N, -97.051796°W; corner marker buoy A); thence to 28° 8' 34.5"N, -97° 3' 24.18"W (28.142917°N, -97.056718W; corner marker buoy B); thence to 28° 8' 31.39"N, -97° 3' 29.11"W (28.142052°N, -97.058085°W; corner marker buoy C); thence to 28° 8' 23.32"N, -97° 3' 29.09"W (28.139812°N, -97.058081°W; corner marker buoy D); thence to 28° 8' 20.78"N, -97° 3' 26.77"W (28.139106°N, -97.057435°W; corner marker buoy E); and thence back to corner marker A.

(ii) Non-Sanctuary Reef. The area within the boundaries of a line beginning at 28° 8' 23.23"N, -97° 2' 53.02"W (28.139785°N, -97.048062°W; corner marker buoy A); thence to 28° 8' 24.76"N, -97° 3' 4.99"W (28.14021°N, -97.051387°W; corner marker buoy B); thence to 28° 8' 12.98"N, -97° 3' 6.69"W (28.136938°N, -97.051859°W; corner buoy C); thence to 28° 8' 8.61"N, -97° 2' 52.48"W (28.135726°N, -97.047912°W; corner buoy D); and thence back to corner marker A.

(D) [(C)] Christmas Bay, Brazoria County.

(E) [(D)] Carancahua Bay, Calhoun and Matagorda County.

(F) [(E)] Powderhorn Lake, Calhoun County.

(G) [(F)] Hynes Bay, Refugio County.

(H) [(G)] St. Charles Bay, Aransas County.

(I) [(H)] South Bay, Cameron County.

(J) [(I)] Areas along all shorelines extending 300 feet from the water's edge, including all oysters (whether submerged or not) landward of this 300-foot line.

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 4, 2019.

TRD-201900327

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


CHAPTER 65. WILDLIFE

SUBCHAPTER A. STATEWIDE HUNTING PROCLAMATION

The Texas Parks and Wildlife Department proposes amendments to §§65.10, 65.29, 65.42, and 65.44, Subchapter A, concerning the Statewide Hunting Proclamation.

The proposed amendment to §65.10, concerning Possession of Wildlife Resources, would reword the content of subsection (f) to clarify provisions governing proof of sex for turkey. The department has received comments from the public indicating confusion with respect to when proof of a turkey's sex is required and how to comply with the requirements. The proposed amendment nonsubstantively alters the current provision to clarify that proof of sex is required for turkeys taken during seasons when the bag limit is gobblers only or gobblers and bearded hens (i.e., not either sex), and that it can remain attached to the harvested bird or accompany the harvested bird (i.e., be available upon request by a game warden).

The proposed amendment to §65.29, concerning Managed Lands Deer (MLD) Programs, would authorize the department to refuse program participation on any tract of land where harvested deer were not presented at a department check station for chronic wasting disease (CWD) testing when required to do so by department rules. The department is concerned that hunters could be advised to avoid presenting harvested deer at mandatory check stations, an action that places hunters in legal jeopardy (it is a criminal offense to fail to present harvested deer at a check station when required to do so) and confounds the department's efforts to contain and manage CWD, a disease that threatens the state's deer populations. The department reasons that participation in the MLD Program is a privilege that allows cooperators to enjoy a longer harvest period and enhanced bag limits, and that privilege should be limited to persons who support the department's statutory duty to protect a public resource. Under the proposed new provision, denial of program participation would not be automatic, but contingent on a number of factors, including whether the applicant advised hunters of any mandatory check station requirements in effect at the time a deer was harvested on property owned or managed by the applicant; whether the applicant encouraged, advised, or directed a person who killed deer on property owned or managed by the applicant not to present a harvested deer at a mandatory check station at any time that harvested deer were required by rule or statute to be presented at a mandatory check station; the number of harvested deer harvested on a property owned or managed by the applicant that were not presented at mandatory check stations; and any other aggravating or mitigating factors the department deems relevant.

The proposed amendment also would update internal cross references to the muzzleloader and youth-only deer seasons established in §65.42.

The proposed amendment to §65.42, concerning Deer, would increase the number of "doe days" (the time period during the general open season when an MLD tag is not required to harvest antlerless deer) from four to 16 in 20 counties, and institute four doe days in 21 counties where the harvest of antlerless deer is currently by MLD tag only.

The current harvest regulation in Bell (east of IH 35), Burleson, Delta, Ellis, Falls, Fannin, Franklin, Freestone, Hopkins, Hunt, Kaufman, Limestone, Milam, Navarro, Rains, Smith, Titus, Van Zandt, Williamson (east of IH 35), and Wood counties provides for a four-day period during the general open season during which antlerless deer may be lawfully harvested without an MLD tag. At all other times during the general open season, an MLD tag is required for the harvest of antlerless deer in these counties. The affected counties are in the Blackland Prairies and Post Oak Savannah ecoregions. Population trends in this area indicate an estimated 4.85% average annual population growth from 2005-2016. Individual Deer Management Units (DMUs) within these ecoregions also experienced similar estimated annual population growth, ranging from 3.3% to 40.1%. A DMU is an area characterized by similar soil types, vegetative communities, wildlife ecology, and land-use practices. Harvest surveys indicate the estimated antlerless deer harvest comprises only 41% of the total harvest for the ecoregion, which may contribute to a skewed sex ratio averaging 3.9 does per buck. Increased doe harvest during the general open season is needed to reduce the impact of the deer herd upon the habitat, improve the sex ratio, and relieve buck harvest pressure. Therefore, the proposed amendment would increase the number of "doe days," from four to 16 days, which would take place beginning opening day of the general open season.

The proposed amendment also would implement "doe days" in Austin, Bastrop, Caldwell, Colorado, Comal (east of IH 35), De Witt, Fayette, Goliad (north of U.S. Highway 59), Gonzales, Guadalupe, Hays (east of IH 35), Jackson (north of U.S. Highway 59), Karnes, Lavaca, Lee, Travis (east of IH 35), Victoria (north of U.S. Highway 59), Waller, Washington, Wharton (north of U.S. Highway 59), and Wilson counties. These counties span the southern edge of the Post Oak Savannah ecoregion. Current harvest regulations in these counties prohibit the harvest of antlerless deer during the general open season unless MLD tags have been issued for the property. Data indicate that deer populations in this area have experienced a slow but steady positive growth from 2005-2017, with an estimated average annual growth rate of 3.13 percent. Deer densities were estimated to be 16.13 acres per deer in 2017, with a range of from 12 to 21 acres per deer. The population data suggest that the growing deer population is above desired density levels for some habitats in the region. Allowing deer densities above this level could be detrimental to habitat components and the deer population. Harvest surveys indicate that the estimated antlerless deer harvest comprises only 41% of the total harvest for the ecoregion, which may contribute to a skewed sex ratio averaging 4.23 does per buck. While participation in the MLD program within this area is high, with many properties that are part of wildlife management associations, harvest data indicate that only 50-60 percent of the recommended antlerless deer harvest has been achieved over the last several years. This trend indicates that MLD program participation alone is not sufficient to address deer population growth in this area. The proposed amendment would therefore implement four "doe days," which is expected to reduce browsing impacts on native habitats, relieve pressure on buck harvest, and provide additional hunting opportunity for those individuals choosing not to participate in the MLD Program. Although the department does not believe that the proposed amendment will result in negative population implications, because antlerless harvest in these counties has been restricted for many years, the department believes that harvest under a "doe day" regulation should be closely monitored to definitively characterize localized harvest pressure. Therefore, the proposed amendment also would impose a requirement that all antlerless deer harvested in the affected counties, including during the archery-only, muzzleloader-only, and youth special seasons, be reported to the department via the department's internet site or mobile application within 24 hours of harvest.

The proposed amendment to §65.42 also would implement an antler restriction for the harvest of mule deer in Lynn County. In 2017, the department selected six Panhandle counties in which to implement an experimental antler-restriction rule in response to undesirably excessive harvest of bucks. Also, in 2017 the department opened a season for mule deer in Lynn County. The population in Lynn County has not been subject to hunting; therefore, the department seeks to impose antler restrictions in Lynn County to create another experimental situation to evaluate the impacts of antler-restriction rules on age structure and sex ratios in a population being hunted for the first time.

The proposed amendment to §65.44, concerning Javelina: Open Seasons and Annual Bag Limits, would open a season for javelina in Borden, Dawson, Gaines, Hardeman, Scurry, and Terry counties. Department survey data indicate that javelina populations in the South Plains are expanding northwards and those in the southeastern Panhandle are expanding westwards, which justifies the opening of a season in the named counties. The season would run from October 1 through the last Sunday in February and the bag limit would be two javelina.

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.

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

In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The ruled 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, expand an existing regulation (by providing for the option to decline MLDP participation for properties not compliant with required CWD testing, adding counties to the effectiveness of "doe day" regulations, implementing antler restriction rules in Lynn County and opening a javelina season in additional counties), 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 Mitch Lockwood (big game) at (830) 792-9677, email: mitch.lockwood@tpwd.texas.gov, Shaun Oldenburger (small game and upland birds) at (512) 389-4778, email: shaun.oldenburger@tpwd.texas.gov or Stormy King (Law Enforcement) at (512) 389-6527, email: jason.jones@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

DIVISION 1. GENERAL PROVISIONS

31 TAC §65.10, §65.29

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.

§65.10.Possession of Wildlife Resources.

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

(c) A person who lawfully takes a deer is exempt from the tagging requirements of Parks and Wildlife Code, §42.018 if the deer is taken:

(1) under the provisions of §65.29 of this title (relating to Managed Lands Deer Program)(relating to Managed Lands Deer Program;

(2) - (5) (No change.)

(d) - (e) (No change.)

(f) During a season in which [In a county where] the bag composition for turkey is restricted to gobblers only or gobblers and [and/or] bearded hens, proof of sex must remain with a harvested turkey (attached or detached from the bird) until it reaches either the possessor's permanent residence or a cold storage/processing facility and is finally processed. Proof of sex for turkey is as follows:

(1) gobbler (male turkey)[male turkey]:

(A) one leg, including the spur[, attached to the bird]; or

(B) [the bird, accompanied by] a patch of skin with breast feathers and beard attached.

(2) bearded hen (female turkey):[female turkey taken during the fall season: the bird, accompanied by] a patch of skin with breast feathers and beard attached.

(g) - (l) (No change.)

§65.29.Managed Lands Deer (MLD) Programs.

(a) (No change.)

(b) General Provisions.

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

(5) On an enrolled tract of land there is no personal or annual bag limit for the type of deer (buck, unbranched antlered, or antlerless) for which MLDP tags have been issued and the provisions of §65.42(b)(6)[§65.42(b)(17)] of this title (relating to Deer [Muzzleloader-only Open Season]), §65.42(b)(7)[§65.42(b)(18)] of this title [(relating to Special Youth-Only Seasons)], and the stamp requirement of Parks and Wildlife Code, Chapter 43, Subchapter I (relating to Archery Stamps), do not apply.

(6) - (11) (No change.)

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

(e) Refusal of Enrollment.

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

(4) The department may refuse to allow or continue enrollment in the MLDP for any tract of land on which a deer has been harvested but not presented to a mandatory check station for chronic wasting disease (CWD) testing as required by Subchapter B of this chapter.

(5) In determining whether to refuse to allow or continue enrollment in the MLDP under paragraph (4) of this subsection the department shall consider:

(A) whether the applicant advised hunters of any mandatory check station requirements in effect at the time a deer was harvested on the tract of land owned or managed by the applicant;

(B) whether the applicant encouraged, advised, or directed a person who killed a deer on the tract of land owned or managed by the applicant not to present a harvested deer at a mandatory check station;

(C) the number of deer harvested on the tract of land owned or managed by the applicant that were not presented at mandatory check stations; and

(D) any other aggravating or mitigating factors the department deems relevant.

(f) (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 4, 2019.

TRD-201900333

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


DIVISION 2. OPEN SEASONS AND BAG LIMITS

31 TAC §65.42, §65.44

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.

§65.42.Deer.

(a) General.

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

(5) In the counties or portions of counties listed in subsection (b)(2)(H) of this section, antlerless deer harvested on properties not subject to the provisions of §65.29 of this title (relating to Managed Lands Deer (MLD) Programs) must be reported via the department's internet or mobile application within 24 hours of the time of kill, including antlerless deer harvested during the special seasons established by subsection (b)(5) - (7) of this section.

(b) White-tailed deer. The open seasons and bag limits for white-tailed deer shall be as follows.

(1) (No change.)

(2) North Zone. The general open season for the counties listed in this subparagraph is from the first Saturday in November through the first Sunday in January.

(A) - (E) (No change.)

(F) In Angelina, Brazoria, Chambers, Cherokee, Fort Bend, Galveston, Goliad (south of U.S. Highway 59), Hardin, Harris, Houston, Jackson (south of [if] U.S. Highway 59), Jasper, Jefferson, Liberty, Matagorda, Montgomery, Newton, Orange, Polk, San Jacinto, Trinity, Tyler, Victoria (south of U.S. Highway 59), Walker, and Wharton (south of U.S. Highway 59) counties:

(G) In Anderson, Bell (East of IH 35), Bowie, Burleson, Brazos, Camp, Cass, Delta, Ellis, Falls, Fannin, Franklin, Freestone, Gregg, Grimes, Harrison, Henderson, Hopkins, Hunt, Kauffman, Lamar, Leon, Limestone, Madison, Marion, Milam, Morris, Nacogdoches, Navarro, Panola, Rains, Red River, Robertson, Rusk, Sabine, San Augustine, Shelby, Smith, Titus, [and] Upshur, Van Zandt, Williamson (East of IH 35), and Wood counties:

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

(H) In Austin, Bastrop, Caldwell, Colorado, Comal (east of IH 35), De Witt, Fayette, Goliad (north of U.S. Highway 59), Gonzales, Guadalupe, Hays (east of IH 35), Jackson (north of U.S. Highway 59), Karnes, Lavaca, Lee, Travis (east of IH 35), Victoria (north of U.S. Highway 59), Waller, Washington, Wharton (north of U.S. Highway 59), and Wilson [Bell (East of IH 35), Burleson, Delta, Ellis, Falls, Fannin, Franklin, Freestone, Hopkins, Hunt, Kauffman, Limestone, Milam, Navarro, Rains, Smith, Titus, Van Zandt, Williamson (East of IH 35), and Wood] counties:

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

(I) (No change.)

[(J) In Austin, Bastrop, Caldwell, Colorado, Comal (east of IH 35), De Witt, Fayette, Goliad (north of U.S. Highway 59), Gonzales, Guadalupe, Hays (east of IH 35), Jackson (north of U.S. Highway 59), Karnes, Lavaca, Lee, Travis (east of IH 35), Victoria (north of U.S. Highway 59), Waller, Washington, Wharton (north of U.S. Highway 59), and Wilson counties;]

[(i) the bag limit is four deer, no more than two bucks and no more than two antlerless;]

[(ii) the antler restrictions described in paragraph (3) of this subsection apply; and]

[(iii) antlerless deer may be taken by MLDP tag only.]

(J) [(K)] In Andrews, Bailey Castro, Cochran, Dallam, Dawson, Deaf Smith, Gaines, Hale, Hansford, Hartley, Hockley, Lamb, Lubbock, Lynn, Martin, Moore, Oldham, Parmer, Potter, Randall, Sherman, Swisher, Terry, and Yoakum counties, the bag limit is three deer, no more than one buck and no more than two antlerless.

(K) [(L)] In Crane, Ector, Loving, Midland, Ward, and Winkler counties:

(i) the bag limit is three deer, no more than one buck and no more than two antlerless; and

(ii) antlerless deer may be taken by MLDP tag only.

(L) [(M)] In all other counties, there is no general open season.

(3) - (5) (No change.)

(6) Muzzleloader-only open seasons, and bag and possession limits shall be as follows. In Anderson, Angelina, Austin, Bastrop, Bell (East of IH 35), Bowie, Brazoria, Brazos, Brewster, Burleson, Caldwell, Camp, Cass, Chambers, Cherokee, Colorado, Comal (East of IH 35), Culberson, Delta, DeWitt, Ellis, Fannin, Falls, Fayette, Fort Bend, Franklin, Freestone, Galveston, Goliad, Gonzales, Gregg, Grimes, Guadalupe, Hardin, Harris, Harrison, Hays (East of IH 35), Henderson, Hopkins, Houston, Hunt, Jackson, Jasper, Jeff Davis, Jefferson, Karnes, Kaufman, Lamar, Lavaca, Lee, Leon, Liberty, Limestone, Madison, Marion, Matagorda, Milam, Montgomery, Morris, Nacogdoches, Navarro, Newton, Orange, Panola, Polk, Presidio, Rains, Red River, Reeves, Robertson, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Smith, Titus, Travis (East of IH 35), Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Waller, Washington, Wharton, Williamson (East of IH 35), Wilson and Wood counties, there is an open season during which deer may be taken only with a muzzleloader.

(A) (No change.)

(B) The bag limit for buck and antlerless deer is as specified in this section for the general season in the county or portion of a county in which take occurs.

(C) Special provisions:

[(i) Buck deer. In any given county listed in this paragraph, all restrictions established in this subsection for the take of buck deer during the general season remain in effect.]

[(ii) Antlerless deer. In the counties listed in paragraph (2)(J) of this subsection, the take of antlerless deer is by MLDP tag only. In all other counties listed in this paragraph, the bag limit for antlerless deer established in this subsection for the general remains in effect.]

(C) [(D)] Antlerless deer may be taken on USFS lands during a muzzleloader-only season.

(7) Special Youth-Only Seasons. There shall be special youth-only general hunting seasons in all counties where there is a general open season for white-tailed deer.

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

(C) Bag limits, provisions for the take of antlerless deer, and special requirements in the individual counties listed in paragraph (2)(A) - (H)[(2)(A) - (J)] of this subsection shall be as specified for the first two days of the general open season in those counties, except as provided in subparagraph (D) of this paragraph.

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

(c) Mule deer. The open seasons and bag limits for mule deer shall be as follows:

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

(4) In Andrews, Bailey, Castro, Cochran, Dawson, Gaines, Hale, Hockley, Lamb, Lubbock, Lynn, Martin, Parmer, Terry, and Yoakum counties:

(A) the Saturday before Thanksgiving for nine consecutive days;

(B) bag limit: one buck; and

(C) antlerless deer may be taken by antlerless mule deer permit or MLDP tag only.

(D) In Lynn County, no person may harvest a buck deer with an outside spread of the main beams of less than 20 inches.

(5) - (6) (No change.)

§65.44.Javelina: Open Seasons and Annual Bag Limits.

(a) The counties listed in this subsection are in the North Zone. In Andrews, Archer, Baylor, Blanco, Borden, Caldwell, Calhoun, Coke, Comal, Concho, Crane, Dawson, DeWitt, Ector, Foard, Gaines, Gillespie, Glasscock, Goliad, Gonzales, Guadalupe, Hardeman, Hays, Howard, Irion, Knox, Llano, Loving, McCulloch, Martin, Mason, Midland, Mitchell, Nolan, Reagan, Refugio, Runnels, San Saba, Scurry, Sterling, Taylor, Terry, Tom Green, Upton, Victoria, Ward, Wichita, Wilbarger, and Winkler counties, there is a general open season.

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

(b) - (d) (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 4, 2019.

TRD-201900334

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

DIVISION 2. CHRONIC WASTING DISEASE - MOVEMENT OF DEER

31 TAC §65.94

The Texas Parks and Wildlife Department (the department) proposes an amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification.

Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of white-tailed and mule deer under deer breeding permits issued by the department.

Chronic wasting disease (CWD) is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle and commonly known as "Mad Cow Disease"), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. Although CWD remains under study, it is known to be invariably fatal to certain species of cervids (including both species of deer native to Texas), and 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. To that end, the department has engaged in a number of rulemakings since 2012 to address the threat of CWD by implementing a comprehensive management strategy.

In 2016, the department promulgated rules to implement a CWD surveillance strategy intended to reduce the likelihood of transmission of CWD from, among other sources, deer breeding facilities. Those rules (still in effect) allow facility owners to substitute ante-mortem (live animal) test results for post-mortem test results to maintain or regain the ability to receive and transfer deer (referred to in the rules as "Movement Qualified," or "MQ status") in the event that post-mortem sampling intensity falls below the minimum established in the rules. The rules also establish minimum age requirements for deer to be eligible for testing, which is based on veterinary and epidemiological thresholds for test efficacy. The department is aware that there are several facilities that did not test the minimum number of eligible-aged mortalities, or at least 3.6 percent of the eligible aged population in the breeding facility, to maintain MQ status and currently do not have a sufficient number of eligible-aged animals to ante-mortem test in order to regain MQ status. Moreover, some of those facilities will never be able to obtain MQ status because it is mathematically impossible for them to ever have enough eligible-aged animals for CWD testing at the level necessary to achieve sufficient confidence that CWD would be detected if present, which is problematic because it leaves no option other than euthanization of all animals in possession or waiting until natural mortality occurs for the entire herd, which can be quite costly to the permitted deer breeder.

After considering recommendations of the department's Breeder User Group and CWD Task Force, staff propose to allow permittees who possess an insufficient number of eligible-aged deer to potentially obtain MQ status for a facility by subjecting all eligible-aged deer to two rounds of ante-mortem testing at an interval of at least 12 months (beginning no earlier than 12 months following the department designating NMQ status for the facility and completing a herd inventory inspection), provided the facility has not received any exposed breeder deer (breeder deer that have been in a facility where CWD has been detected within the previous five years), there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory on file with the department, and all CWD test results are "Not Detected." The proposed amendment also includes provisions to account for testing of deer that are not old enough to be tested when testing begins within a facility but become eligible-aged during the 12-month testing interval and deer that do not reach eligible age during the 12-month testing interval, which is necessary to prevent affected facilities from an infinite regress scenario where the continual appearance of fawns makes compliance with the proposed amendment impossible. The department, after consultation with Texas Animal Health Commission (TAHC) and review of the best available data regarding the efficacy of ante-mortem testing modalities, has concluded that whole-herd ante-mortem testing at an interval of at least 12 months in most cases will provide the department with confidence that CWD is not present in a given population. However, there are circumstances that could arise to create unique situations in which whole-herd testing events 12 months apart might not provide the desired epidemiological confidence. Therefore, the proposed amendment also would allow the department, following a facility's compliance with the provisions of proposed subsection (f), to decline to designate that facility as MQ upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation would be required to be in writing and would be required to contain the specific rationale supporting the recommendation. The proposed amendment also would allow the department to include in the recommendation any specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation, following which the facility could be designated MQ.

Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the amendment as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

Mr. Lockwood also has determined that for each of the first five years that the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be additional regulatory flexibility for the regulated community and a pathway for certain deer breeding facilities that otherwise would not be permitted to transfer deer to gain that ability.

There will be no adverse economic effect on persons required to comply with the rule as proposed, as the proposed rule would not be mandatory, but at the discretion of the regulated community.

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 rule will not result in adverse economic impacts to small businesses, micro-businesses, or rural communities because it creates a voluntary pathway for deer breeders who are otherwise prohibited from transferring deer to gain the status to do so. A member of the regulated community who does not wish to utilize that pathway would not be required to do so and would be able to pursue other options. On that basis, 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 rule as proposed will not impact local economies.

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

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, would: 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; would create a new regulation (by creating an additional testing regimen that would allow certain deer breeders to achieve MQ status); expand an existing regulation by creating additional testing options, but would not 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 Mitch Lockwood at (512) 389-4363, email: mitch.lockwood@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, 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.

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

§65.94.Breeding Facility Minimum Movement Qualification.

(a) (No change.)

(b) A breeding facility that has been designated as NMQ for failure to comply with the testing requirements specified in subsection (a) of this section will be restored to MQ:

(1) when the required "not detected" test results prescribed by subsection (a) of this section are submitted; or

(2) the department has designated the breeding facility MQ under the provisions of subsections (f) or (g) of this section.

(c) - (e) (No change.)

(f) A breeding facility that is designated NMQ and is unable to satisfy the requirements of subsection (a) of this section to achieve MQ status may be designated MQ by the department, provided:

(1) the facility has not received any exposed deer;

(2) there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory reported in TWIMS;

(3) the department has determined that the number of eligible-aged deer in the facility is not sufficient to provide the necessary ante-mortem test samples to substitute for post-mortem test results;

(4) a department herd inventory inspection has been completed prior to the initiation of any ante-mortem testing under paragraph (5) of this subsection;

(5) all eligible-aged deer in the facility are subjected to ante-mortem testing two times at an interval of not less than 12 months, beginning not less than 12 months from being designated NMQ, provided:

(A) a deer that is not eligible-aged when testing under this begins but reaches eligible-aged status during the 12 -month interval stipulated by this paragraph is not required to be tested twice, but must be tested at least once during the 12-month interval stipulated by this paragraph. The test result must be "not detected"; and

(B) a deer that is not eligible-aged when testing under this paragraph begins and does not become eligible-aged during the 12-month interval stipulated by this paragraph is not required to be tested; and

(6) a test result of "not detected" for all tests required under paragraph (5) of this subsection is obtained and submitted for each eligible-aged deer in the facility.

(g) The department may decline to designate a facility as MQ under subsection (f) of this section upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation:

(1) must be in writing and articulate the specific rationale supporting the recommendation; and

(2) may include specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation.

(h) Upon the successful completion of any additional testing requirements stipulated in the recommendation required by subsection (g) of this section, the department may designate a facility MQ.

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 4, 2019.

TRD-201900329

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


SUBCHAPTER N. MIGRATORY GAME BIRD PROCLAMATION

The Texas Parks and Wildlife Department (the department) proposes the repeal of §§65.314 - 65.321, an amendment to §65.313, and new §§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.

Prior to 2016, the Service issued annual regulatory frameworks for migratory game birds at different times of the year (the preliminary early-season (dove, teal, snipe, woodcock, rails, gallinules) frameworks in late June and the preliminary late-season (ducks, geese, cranes) frameworks in early August). In 2017, the Service began issuing all final migratory game bird frameworks in November and as a result, the commission included deliberation of migratory game bird regulations as part of the regular statewide hunting proclamation process, which allows hunters of migratory game birds to know season dates, bag limits, and other regulations much earlier. Because there is no longer a distinction at the federal level between early season species and late season species, the department has determined that there is no longer a reason for the state's migratory game bird proclamation to be organized according to those distinctions. The proposed new rules would reorganize existing provisions by individual species, including zone boundaries, season dates, bag limits, exceptions to possession limits, and any special provisions. The reorganization is completely nonsubstantive; no existing provisions are being eliminated or altered and no new provisions are being added, other than the designation of calendar dates for hunting seasons and the bag limit for pintail ducks, discussed below.

The proposed amendment to §65.313, concerning General Rules, would state that the possession limit for migratory birds is three times the daily bag limit unless otherwise specifically provided. Under the current rules, the possession limit is also three times the daily bag limit, which is stated repeatedly for each species of migratory game bird. By simply having a general provision regarding possession limits, it is not necessary to repeat the same provision multiple times.

The proposed new sections, in addition to the nonsubstantive reorganization discussed previously, also would specify the season dates for the 2019-2020 migratory game bird seasons. In all cases, the proposed new rules retain the season structure and bag limits for all migratory game birds from last year, with one exception, while adjusting 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 single exception is a reduction in the bag limit of pintail ducks, from two birds to one bird. The Service frameworks specify a bag limit of one pintail duck per person per day.

Clayton Wolf, Wildlife Division Director, has determined that for the first five years that the repeals, amendment, and new sections 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 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 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 also 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.

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

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 repeal and 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 via the department website at www.tpwd.texas.gov and to Shaun Oldenburger (Small Game Bird Program Director) at (512) 389-4778, email: shaun.oldenburger@tpwd.texas.gov.

31 TAC §§65.313 - 65.320

The amendment and new rules 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 amendment and new rules affect Parks and Wildlife Code, Chapter 64.

§65.313.General Rules.

(a) No person shall hunt migratory game birds except during the open season as provided herein, or at any time except during the hours as provided herein. All dates are inclusive.

(b) If no open season is provided under this subchapter for a species of migratory bird, there is no open season for that species, including red-billed pigeons, band-tailed pigeons, or any species of shorebird.

(c) [(b)] Shooting hours for migratory game birds are from one-half hour before sunrise to sunset, except during the special white-winged dove season. In the special white-winged dove zone during the special white-winged dove season, shooting hours are from noon to sunset.

(d) Except as specifically provided in this subchapter, the possession limit for any migratory game bird species is three times the daily bag limit specified for that species.

(e) [(c)] No person shall hunt migratory game birds in this state unless that person is certified in the Harvest Information Program.

(f) [(d)] Every migratory game bird wounded by hunting and reduced to possession by a hunter shall be immediately killed and become a part of the daily bag limit.

(g) [(e)] The provisions of 50 CFR Part 20, Subparts E, F, G, and H in effect on September 1, 2007, are adopted by reference.

(h) [(f)] The executive director may, after notifying the Chairman of the Commission, authorize any rulemaking necessary to modify the provisions of this subchapter.

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

(a) Zones.

(1) North Zone: That portion of the state north of a line beginning at the International Bridge south of Fort Hancock; thence north along FM 1088 to State Highway 20; thence west along State Highway 20 to State Highway 148; thence north along State Highway 148 to Interstate Highway 10 at Fort Hancock; thence east along Interstate Highway 10 to Interstate Highway 20; thence northeast along Interstate Highway 20 to Interstate Highway 30 at Fort Worth; thence northeast along Interstate Highway 30 to the Texas-Arkansas state line.

(2) Central Zone: That portion of the state between the North Zone and the South Zone.

(3) South Zone and Special White-winged Dove Area: That portion of the state south of a line beginning at the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to State Loop 1604; thence following Loop 1604 south and east to Interstate Highway 10; thence east along Interstate Highway 10 to the Texas-Louisiana State Line.

(b) Seasons; Daily Bag Limits.

(1) North Zone.

(A) Dates: September 1 - November 12, 2019 and December 20, 2019 - January 5, 2020.

(B) Daily bag limit: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day.

(2) Central Zone.

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

(B) Daily bag limit: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day.

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

(A) Dates: 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 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 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) Zone Boundaries.

(1) High Plains Mallard Management Unit (HPMMU): that portion of Texas lying west of a line from the international toll bridge at Del Rio, thence northward following U.S. Highway 277 to Abilene, State Highway 351 and State Highway 6 to Albany, and U.S. Highway 283 from Albany to Vernon, thence eastward along U.S. Highway 183 to the Texas-Oklahoma state line.

(2) North Zone: that portion of Texas not in the High Plains Mallard Management Unit but north of a line from the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to Interstate Highway 10 at San Antonio; thence east along Interstate Highway 10 to the Texas-Louisiana State Line.

(3) South Zone: that part of the state not designated as being in the HPMMU or the North Zone.

(4) The September teal-only special season is statewide.

(b) Season dates and bag limits.

(1) HPMMU.

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

(B) "dusky ducks": November 4, 2019 - January 26, 2020.

(2) North Zone.

(A) For all species other than "dusky ducks": November 9 - December 1, 2019 and December 7, 2019 - January 26, 2020; and

(B) "dusky ducks": November 14 - December 1, 2019 and December 7, 2019 - January 26, 2020.

(3) South Zone.

(A) For all species other than "dusky ducks": November 2 - December 1, 2019 and December 14, 2019 - January 26, 2020; and

(B) "dusky ducks": 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 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; three scaup (lesser scaup 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 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) The daily bag limit during the September teal-only season is six in the aggregate.

§65.316.Geese.

(a) Zone boundaries.

(1) Western Zone: that portion of Texas lying west of a line from the international toll bridge at Laredo, thence northward following IH 35 and 35W to Fort Worth, thence northwest along U.S. Highways 81 and 287 to Bowie, thence northward along U.S. Highway 81 to the Texas-Oklahoma state line.

(2) Eastern Zone: the remainder of the state.

(b) Season dates and bag limits.

(1) Western Zone.

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

(B) Dark geese: 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 2, 2019 - January 26, 2020. The daily bag limit for light geese is 20, and there is no possession limit.

(B) Dark geese:

(i) Season: November 2, 2019 - January 26, 2020;

(ii) Bag limit: The daily bag limit for dark geese is five, to include no more than two white-fronted geese.

(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 14 - 29, 2019.

(2) The daily bag limit is five.

(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) Means and methods. The following means and methods are lawful during the time periods set forth in paragraph (4) of this section:

(A) shotguns capable of holding more than three shells; and

(B) electronic calling devices.

(2) Possession. During the time periods set forth in paragraph (4) of this section:

(A) there shall be no bag or possession limits; and

(B) the provisions of §65.312 of this title (relating to Possession of Migratory Game Birds) do not apply.

(3) Shooting hours. During the time periods set forth in paragraph (4) of this subsection, shooting hours are from one half-hour before sunrise until one half-hour after sunset.

(4) Season dates.

(A) From January 27 - March 15, 2020, the take of light geese is lawful in the Eastern Zone.

(B) From 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 19 - 20, 2019;

(B) daily bag limits;

(i) ducks, coots, and mergansers - as specified by §65.315(b)(1) of this title (relating to Ducks, Coots, Mergansers, and Teal); and

(ii) geese - as specified by §65.316(b)(1) of this title (relating to Geese).

(2) North Duck Zone:

(A) season dates: November 2 - 3, 2019;

(B) daily bag limits:

(i) ducks, coots, and mergansers - as specified by §65.315(b)(2) of this title; and

(ii) geese:

(I) west of IH 35 - as specified by §65.316(b)(1) of this title; and

(II) east of IH 35 - as specified by §65.316(b)(2) of this title.

(3) South Duck Zone:

(A) season dates: Special youth-only season: October 26 - 27, 2019;

(B) daily bag limits:

(i) ducks, coots, and mergansers - as specified by §65.315(b)(3) of this title; and

(ii) geese:

(I) west of IH 35 - as specified by §65.316(b)(1) of this title; and

(II) east of IH 35 - as specified by §65.316(b)(2) of this title.

§65.318.Sandhill Crane.

(a) Zone Boundaries.

(1) Zone A: that portion of Texas lying west of a line beginning at the international toll bridge at Laredo, thence northeast along U.S. Highway 81 to its junction with Interstate Highway 35 in Laredo, thence north along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, thence northwest along Interstate Highway 10 to its junction with U.S. Highway 83 at Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-Oklahoma state line.

(2) Zone B: that portion of Texas lying within boundaries beginning at the junction of U.S. Highway 81 and the Texas-Oklahoma state line, thence southeast along U.S. Highway 81 to its junction with U.S. Highway 287 in Montague County, thence southeast along U.S. Highway 287 to its junction with Interstate Highway 35W in Fort Worth, thence southwest along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, thence northwest along Interstate Highway 10 to its junction with U.S. Highway 83 in Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-Oklahoma state line, thence south along the Texas-Oklahoma state line to the south bank of the Red River, thence eastward along the vegetation line on the south bank of the Red River to U.S. Highway 81.

(3) Zone C: the remainder of the state, except for the closed areas specified in paragraph (4) of this subsection.

(4) Closed areas:

(A) that portion of the state lying east and north of a line beginning at the junction of U.S. Highway 81 and the Texas-Oklahoma state line, thence southeast along U.S. Highway 81 to its junction with U.S. Highway 287 in Montague County, thence southeast along U.S. Highway 287 to its junction with Interstate Highway 35W in Fort Worth, thence southwest along Interstate Highway 35 to its junction with U.S. Highway 290 East in Austin, thence east along U.S. Highway 290 to its junction with Interstate Loop 610 in Harris County, thence south and east along Interstate Loop 610 to its junction with Interstate Highway 45 in Houston, thence south on Interstate Highway 45 to State Highway 342, thence to the shore of the Gulf of Mexico, and thence north and east along the shore of the Gulf of Mexico to the Texas-Louisiana state line; and

(B) that portion of the state lying within the boundaries of a line beginning at the Kleberg-Nueces county line and the shore of the Gulf of Mexico, thence west along the county line to Park Road 22 in Nueces County, thence north and west along Park Road 22 to its junction with State Highway 358 in Corpus Christi, thence west and north along State Highway 358 to its junction with State Highway 286, thence north along State Highway 286 to its junction with Interstate Highway 37, thence east along Interstate Highway 37 to its junction with U.S. Highway 181, thence north and west along U.S. Highway 181 to its junction with U.S. Highway 77 in Sinton, thence north and east along U.S. Highway 77 to its junction with U.S. Highway 87 in Victoria, thence south and east along U.S. Highway 87 to its junction with State Highway 35 at Port Lavaca, thence north and east along State Highway 35 to the south end of the Lavaca Bay Causeway, thence south and east along the shore of Lavaca Bay to its junction with the Port Lavaca Ship Channel, thence south and east along the Lavaca Bay Ship Channel to the Gulf of Mexico, and thence south and west along the shore of the Gulf of Mexico to the Kleberg-Nueces county line.

(b) Season dates and bag limits.

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

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

(3) Zone C: 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 section.

(1) Season dates: September 14 - 29, 2019 and November 2 - December 25, 2019.

(2) Daily bag limit: 15 in the aggregate.

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

(1) Season dates: September 14 - 29, 2019 and November 2 - December 25, 2019.

(2) Daily bag limits:

(A) King and clapper rails. The daily bag limit is 15 in the aggregate; and

(B) Sora and Virginia rails. The daily bag limit is 25 in the aggregate.

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

(1) Season dates: October 26, 2019 - February 9, 2020.

(2) The daily bag limit is eight.

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

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

(2) The daily bag limit is three.

§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 16 - December 2, 2019.

(2) Duck, gallinule, moorhen, rail, and woodcock: January 27 - February 9, 2020.

(3) There is no extended falconry season in the HPMMU.

(4) Daily bag limit: three in the aggregate.

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 4, 2019.

TRD-201900340

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


31 TAC §§65.314 - 65.321

The repeals 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 repeals affect Parks and Wildlife Code, Chapter 64.

§65.314.Zones and Boundaries for Early Season Species.

§65.315.Open Seasons and Bag and Possession Limits--Early Season.

§65.316.Closed Areas.

§65.317.Zones and Boundaries for Late Season Species.

§65.318.Open Seasons and Bag and Possession Limits--Late Season.

§65.319.Extended Falconry Season--Early Season Species.

§65.320.Extended Falconry Season--Late Season Species.

§65.321.Special Management Provisions.

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 4, 2019.

TRD-201900339

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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


SUBCHAPTER T. DEER BREEDER PERMITS

31 TAC §65.610

The Texas Parks and Wildlife Department (the department) proposes an amendment to §65.610, concerning Transfer of Deer. The proposed amendment would extend the period of time that breeder deer may be confined in a "soft release" enclosure at a release site prior to complete liberation.

Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of white-tailed and mule deer under deer breeding permits issued by the department. Current rules provide that with prior department authorization, breeder deer being transferred for purposes of release may be detained for not more than 30 days in an enclosure at the release site to allow the deer to become acclimated to surroundings and habitat ("soft release").

With the emergence of chronic wasting disease (CWD) in both captive and free-ranging deer populations in the state, the department is faced with a significant challenge. CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle and commonly known as "Mad Cow Disease"), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. Although CWD remains under study, it is known to be invariably fatal to at least some species of cervids and 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. To that end, the department has engaged in a number of rulemakings since 2012 to address the threat of CWD by implementing a comprehensive management strategy.

Under current rule, deer cannot be released from a "soft release" pen during an open season or the 10-day period immediately preceding an open season, and Parks and Wildlife Code, §43.368, provides that during an open season or the 10-day period preceding an open season, buck breeder deer may be transferred only after having their antlers removed. The first day of the 10-day period prior to the open season is known colloquially as "antler-cutoff date."

The department's CWD management rules allow the release of breeder deer only to high-fenced release sites. For epidemiological tracing purposes, the exact physical parameters of each release site must be known and registered with the department, which allows the department and Texas Animal Health Commission (TAHC) to document the location of every breeder deer that is liberated. Some release site owners have engaged in the practice of registering small high-fenced acreages within larger high-fenced acreages as release sites, using the smaller acreage as a de facto "extended soft release" pen (allowing deer to be detained for longer than the 30-day maximum for "soft releases" allowed by rule), and then amending the release site on file with the department when the deer are provided access to the larger surrounding acreage. This practice, if recurring at any site, is problematic for both the department and the regulated community because Texas Wildlife Information Management Services (TWIMS), the department's automated data system, is not designed to reconcile repeated changes to the dimensions and identities of release sites at one location, and because it is possible for release site owners to unintentionally trigger undesired CWD movement qualification standards. The department is not opposed in principle to allowing for some sort of extended "soft release" provisions, provided there is no conflict with Parks and Wildlife Code, §43.368, governing the removal of antlers from transferred bucks prior to hunting seasons.

The proposed amendment would alter subsection (d) by reorganizing the current provisions and adding several new provisions. New provisions within paragraph (2) would create a longer time period for "soft release" and create a standard for what constitutes "release." The proposed new provisions would allow deer to be temporarily held for any length of time between March 1 and the antler-cutoff date (ten days before the opening of the archery-only season for deer, which is the Saturday closest to September 30). This would maximize the available time between deer seasons for release site owners to acclimate deer. The other new provision within proposed new paragraph (2) would stipulate that "release" consists of the removal of at least 20 feet of the components of a pen that serve to maintain deer in a state of detention within the pen (provided no opening is less than 10 feet in width), and that all such components be removed for no fewer than 30 consecutive days. This provision is necessary to provide an objective standard and to prevent misunderstandings.

Paragraph (2) of the proposed amendment also would retain current provisions requiring that authorization be obtained from the department prior to "soft release" activities, that "soft release" enclosures be physically separate from any deer breeding facility, that deer within a "soft release" enclosure not be commingled with breeder deer, that deer in a "soft release" enclosure may not be returned to any deer breeding facility, that the department will not authorize a "soft release" during an open hunting season, and that deer may not be hunted while in a "soft release" enclosure.

Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the amendment as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

Mr. Lockwood also has determined that for each of the first five years that the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be additional regulatory flexibility for the regulated community.

There will be no adverse economic effect on persons required to comply with the rule 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, 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 rule will not result in adverse economic impacts to 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 rule as proposed will not impact local economies.

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

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, will create a new regulation (by expanding the length of time deer may be held in a "soft release" enclosure), 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 Mitch Lockwood at (512) 389-4363, email: mitch.lockwood@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, 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.

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

§65.610.Transfer of Deer.

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

(d) Release.

(1) The department may authorize the release of breeder deer for stocking purposes if the department determines that the release of breeder deer will not detrimentally affect existing populations or systems.

(2) Breeder deer lawfully transferred to a registered release site may be held in temporary captivity for any period of time from March 1 through the eleventh day immediately preceding an open deer season to acclimate the breeder deer to habitat conditions at the release site; however, such temporary captivity must be specifically authorized in writing by the department. Not later than 11:59 p.m. on the eleventh day immediately preceding an open deer season, all deer being held in temporary captivity under the provisions of this paragraph shall be released. Release shall consist of the removal of at least 20 feet of the components of a pen that serve to maintain deer in a state of detention within the pen; however, no opening shall be less than 10 feet in width. Such components shall be removed for no fewer than 30 consecutive days.

(A) An enclosure used to temporarily detain deer under this paragraph shall be physically separate from any deer breeding facility and the deer being temporarily held shall not be commingled with breeder deer. Deer held in temporary captivity shall not be returned to any deer breeding facility.

(B) The department will not authorize the detention of deer under this paragraph during an open hunting season.

(C) Deer in temporary captivity under the provisions of this paragraph shall not be hunted while in temporary captivity.

[(2) Breeder deer lawfully purchased, possessed, or obtained for stocking purposes may be held in captivity for no more than 30 days:]

[(A) to acclimate the breeder deer to habitat conditions at the release site;]

[(B) when specifically authorized by the department;]

[(C) if they are not hunted prior to release; and]

[(D) if the temporary holding facility is physically separate from any deer breeding facility and the breeder deer being temporarily held are not commingled with breeder deer being held in a deer breeding facility. Breeder deer removed from a deer breeding facility to a temporary holding facility shall not be returned to any deer breeding facility. Except as provided in Parks and Wildlife Code, §43.363, no breeder deer shall be released from a temporary holding facility during an open season or the 10-day period immediately preceding an open season.]

(e) - (f) (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 4, 2019.

TRD-201900338

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: March 17, 2019

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