Texas Parks and Wildlife Commission
Regulations Committee

Aug. 25, 2004

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED, that heretofore on the 25th day of August, 2004, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission, in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters Complex, to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

Robert L. Cook, Executive Director, and other personnel of the Texas Parks and Wildlife Department

P R O C E E D I N G S

COMMISSIONER FITZSIMONS: All right. First order of business, call to order at 10:40 the Regulations Committee.

First order of business, approval of Committee minutes been distributed. Is there a motion for approval?

COMMISSIONER RAMOS: I so move.

COMMISSIONER FITZSIMONS: Made by Commissioner Ramos, second by Commissioner Watson.

COMMISSIONER WATSON: Second.

COMMISSIONER FITZSIMONS: All right. Item Number 1, Chairman's charges. Bob.

MR. COOK: Mr. Chairman, thank you. Just a brief note on our shrimp license buyback. As of this date, TPWD has purchased 1,174 bay and bait shrimp licenses at a cost of $7.1 million. Of the money spent to purchase licenses, almost $1.6 million has been from sources other than from State funds.

Our most recent donation came from the Earl C. Sams Foundation. Provided funds that had been used to make up the difference between what we will pay — kind of what we set our cap at for a particular license — and what the license-holder is asking, but only within specific counties on the Texas coast that those funds are available.

That was a lead step and allowed up to do some things we could not have done otherwise. Since the last Commission meeting, 22 commercial bay and bait shrimp boat licenses have been purchased using $54,295 from that funding source.

Later today Dr. McKinney will be presenting a proposal to extend the saltwater stamp surcharge. I'd like to add just a note, and you will see it in your Commission brief notes if you have not already. Through the years, traditionally we have flown the Bay System of the Texas coast on kind of the opening day.

In this August opening that we just had — what; a week ago or so, I want to give you a little bit of information and, you know, talk about it just a second.

From 1994 to 1998 for this August opening, that five-year period, we averaged 800 — averaged, been able to see from the aircraft or however we were flying those bays — 845 boats on opening day. That five-year period, '94 to '98.

In '99 through 2000, 582 boats on the water on opening day. Last year, 2003, 403 boats. This year, 2004, 293 boats on the water. So certainly, a combination of factors are involved there which you are all aware of. Fuel costs, condition of some of those boats, price of shrimp dramatically changed — I mean, you look at that chart Doc was showing me there yesterday, when shrimp was, you know, $2 a pound back there when you had 800 boats out on the water.

Now, when that same shrimp on the dock, I understand, is around 70-some-odd cents for the same shrimp on the dock. So what part all of that plays, you know, is important for us to know and consider.

But I wanted to give you that information and tell you about it, because it is a fact how it directly, you know, if and how it directly results from the shrimp buyback program. We know that there's still 1,000 boats or so out there that are licensed that weren't on the water that day, and so that's what we're still working on.

And — but I thought that was some interesting information that tells somewhat the extent that our shrimp industry is in. That's a pretty telling set of numbers, and I appreciate your attention. Thank you.

COMMISSIONER FITZSIMONS: It's interesting, as Larry's pointed out in the past, that the purchase of license is not ever proportionate reduction in effort. It isn't until the market pressures come in that you see this rapid decline.

In other words, a lot of those buybacks were in the period where you still had almost twice as many boats out there on the water. It wasn't until the market forces came into play that you had the acceleration of reduction in effort.

COMMISSIONER HOLMES: We're likely buying back licenses that weren't being fished.

COMMISSIONER FITZSIMONS: Right. That's so true. It's still active.

COMMISSIONER HOLMES: You still have to take it out of the pool.

COMMISSIONER HOLT: Bob, you had more people — you said there's 1,000 to 1,200 licenses still out there — have you had an accelerated amount of people coming to you saying, Because of market forces, saying, I want out ‘‘ amount of money.

MR. COOK: I'll ask Doc to address that. I'll ask Doc to address that later on, but I don't think necessarily so. I think — you know, there's always more than we can buy at that moment in time, but I wouldn't say that — I think a lot of those folks traditionally, that has been their livelihood. That is what they —

COMMISSIONER HOLT: In cycles.

MR. COOK: — that is what they do, and like most businesses, as that price value cycles, you're going to see some of this regardless. But I think — you know, I thought it was interesting from the standpoint of, you know, long term, the buyback, is working, you know, it's having an impact.

Certainly, market forces have an incredible impact, but, you know, for what we're doing, I think we're doing the right thing. We're doing it in a manner that we committed to do with the Legislature, and there are some other, you know, some other things at work here that play into this decision.

COMMISSIONER HOLMES: Right.

COMMISSIONER FITZSIMONS: I think it's safe to say that it's working faster with the two together than it would —

COMMISSIONER HOLT: Yes, you would think it would.

COMMISSIONER HOLMES: At the risk of extending this, do we have a policy —

COMMISSIONER FITZSIMONS: Never a thought with the Regulations Committee.

COMMISSIONER HOLMES: — do we have a an official position on one of the proposals that was reported in today's paper about that effort to lobby United States Congress to limit imports of shrimp, foreign shrimp, or to put a fairly sizeable fee on that or excess tax on that?

COMMISSIONER FITZSIMONS: At the hearing, at Chairman Hildebrand's committee, the specific issue of buyback and some of the different proposals for bay shrimping were — prepared us. Well, I mean, were discussed, and I testified there and we reviewed some of the same issues here.

It was brought up the issue of — that's before the — it's a WTO issue — it's before the Department of Commerce. As I understand it, the Department of Commerce is — has levied on several countries and not others, is that —

COMMISSIONER HOLMES: Some dumping.

COMMISSIONER FITZSIMONS: Yes.

COMMISSIONER HOLMES: There's some dumping.

COMMISSIONER FITZSIMONS: And again, we've got plenty to do dealing with our bay issue, nine miles, I think, without that will happen. But I think that's a secondary issue for us right now.

COMMISSIONER HOLMES: It's not unrelated.

COMMISSIONER FITZSIMONS: It's certainly not unrelated, but I would say this; that other states in the marine fisheries are starting to look at our approach. So maybe the answer to your question is if we stay our course, I think it will be consistent with what other states and the Feds are looking at doing, which is limited entry.

And I think most people in the industry agree that it helps our industry to have limited entry. So as far as the import thing, I think that it's related but not our first —

COMMISSIONER HOLMES: Changes the market dynamic.

COMMISSIONER FITZSIMONS: Yes. It could. Absolutely, it could. Which is why you have to have both of these working. Right now, with the accelerated things versus the market forces. But it's sort of like a two — two sides of the railroad. The other one is a limited entry, and I think we'll need to accelerate that so that the issue that you're discussing about imports doesn't undo a lot of our —

COMMISSIONER BROWN: Has that aspect of the business continued to expand as far as shrimp farming on an international basis or is that —

COMMISSIONER FITZSIMONS: No, the numbers I read were 80 percent of — are imported; not necessarily farmed, but imported.

MR. COOK: Eighty percent of — and Doc but that could save us all here, but 80 percent of the shrimp that we eat today is farm-raised. Not necessarily foreign, but farm-raised somewhere. I think a sizeable chunk of that is imported shrimp.

DR. McKINNEY: Eighty percent imported, 30 percent foreign.

COMMISSIONER FITZSIMONS: Okay. Now, let's see — some of that's farmed here in Texas. Midland, Texas.

COMMISSIONER HOLT: They do more where Midland is? I didn't realize that.

COMMISSIONER FITZSIMONS: We're off to a ‘‘ off like a herd of turtles. Is that it for your charges?

Okay. Item — General Counsel, Item 2, for overview, Ann Bright.

Thank you, sir.

MS. BRIGHT: Good morning, I'm Ann Bright, General Counsel, and I'm here to talk actually about a couple of agenda items regarding the rule review.

Texas Parks and Wildlife Department as a State agency is required by the Administrative Procedures Act to review all of our rules at least once every four years. In this review we have to assess whether the reasons that we initially adopted the rule continue to exist.

The process begins by publication of a notice in the Texas Register saying that we are reviewing the rules, and then following the review and consideration of any comment we receive, we come back to the Commission and ask to either readopt, adopt with changes, or repeal the rules.

There are two chapters that are scheduled for rule review at this time. One is Chapter 59 Parks and the other is Chapter 69 Resource Protection. And we at this point really just want to publish notices of those reviews.

I'll be happy to answer any questions.

COMMISSIONER FITZSIMONS: No questions for Ann?

Thank you, Ann.

And Agenda Item 3, session opposed proposed changes. Ann and Steve.

Steve. Steve, you're on the list.

MR. WHISTON: Back up.

COMMISSIONER FITZSIMONS: Okay, back up.

MS. BRIGHT: Again, for the record, I'm Ann Bright, General Counsel, and I'm here to talk about another rule review that's actually a little further down the road.

On March 5 and July 23, following a previous presentation to the Commission, we published notice in the Texas Register that we were going to be reviewing three chapters — Chapter 51, Executive, Chapter 55, Law Enforcement, and Chapter 61, Design and Construction.

We received no public comment on our request — our notice that we were going to review the rules. In reviewing these rules, we considered whether the reasons for initially adopting the rules continue to exist.

Along those lines we also considered whether the rules were statutorily required and were they just necessary at all. Also, in connection with the review of these rules, we looked to see if there were other requirements that we adopt rules that maybe we didn't have adopted or hadn't adopted previously.

After reviewing these rules, we're requesting permission to publish some clarifying changes to the following: the procedures for adoption of rules, our authority to contract, our sick leave pool, and contracts for public works.

Again, these are primarily clarifying languages, making the rules more accurate to more accurately reflect our processes.

We're also recommending that we completely delete a few of the subchapters. The first one is Easement Request and Unauthorized Easement Activity. We have a very extensive policy right now for this process. This is not statutorily required, and we believe it's unnecessary.

Department Litigation — that, again, that rule is unnecessary and not statutorily required. That type of thing would be better or more appropriate for Commission policy. A memorandum of understanding is with the Texas Department of Economic Development and the Texas Department of Transportation.

The statutory authority for that rule went away this last session, and so we would like to delete that as well. Also, to increase user-friendliness of our rules, we would like to reorganize couple — few of the subsections or the subchapters: nonprofit organizations, mandatory hunter education program, and the mandatory boater education program.

And after reviewing the statutory requirements to adopt rules, we also think that there are a few rules that we need to consider adopting. First of all, our employee training rules. There's a provision in the Government code that requires us to have training rules.

There's also a provision in the Government code that requires State agencies to have rules regarding their advisory committees. Under that rule, under that statute, if, unless otherwise provided in the Agency's rules, advisory committees go away September 1, 2005.

So what we're wanting to do is between now and 2001 — or September 1, 2005 — is to review all of our advisory committees and come back to the Commission with proposed rules for the ones that will be continued.

And then also Administrative Hearing Rules. It's very rare for us to have an administrative hearing. Those go to the State Office of Administrative Hearings. But we've recently identified some situations where we probably do need a few rules for clarification.

The local Parks Grant program rules are in Chapter 61. Our local Parks Grant staff is continuing their review and will come back to the Commission in November with some recommendations regarding that bunch.

We're also going to complete our review of the Oyster and Shrimp rules in the summer of 2005. If you'll recall, the Commission previously authorized the publication of the rule review for that. But we've got a little bit more time on that rule.

And that ends my presentation. I'd be happy to answer any questions.

COMMISSIONER FITZSIMONS: Thank you, Ann.

If there are no further questions or discussion, without objection, I'll authorize staff to publish this Item 3 and Agenda Item 2 in the Texas Register for the required public comment period.

Thank you, Ann.

Agenda Item 4, Civil Restitution Values.

Kris. Kris Bishop, you make your presentation. Thank you.

MS. BISHOP: Good morning, Mr. Chairman, Commissioners, Mr. Cook. My name is Kris Bishop, and I serve as the Assistant Chief of Fisheries Enforcement for the Law Enforcement Division. One of my duties is to administer the Civil Restitution Program.

Much of the presentation I'm going to give you today is a review of the presentation I gave you at the May Commission meeting with a few notable changes. Today, staff proposes amendments to Texas Administrative Code 69.22 and 69.30 concerning the Department's rules for recovering monetary damages from persons convicted of taking wildlife resources in violation of the law.

I'd like to begin by reviewing the laws and regulations that pertain to our Civil Restitution Program and then inform you of the research that initiated these proposals.

In 1985 the Texas Legislature passed amendments to the Parks and Wildlife code by adding Chapter 12.301, "A person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of this code or a proclamation or regulation under this code shall be held liable to the State for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured."

At that time they also added Chapter 12.302, "Whereby, the Commission shall adopt the rules to establish guidelines for determining the value of those injured and destroyed fish, shellfish, reptiles, amphibians, birds, and animals."

The recovery value of injured and destroyed wildlife is determined on a per animal basis under rules adopted by the Commission. For each animal a value is assigned for each of eight scoring criteria. Those are recreation, aesthetics, educational, scarcity, environmental tolerance, environment, economics, recruitment in an ecological role.

Those scores are summed to create a total criteria score and then multiplied by a weighting factor to adjust for variance in public demand or perception of value. The adjusted criteria score has a corresponding recovery value when the violator is then assessed that amount.

The value of trophy wildlife species is determined by a formula based on the animal's Boone & Crockett score. I would like to add that the Office of the Attorney General has been very helpful and provided a tremendous amount of support in our efforts to collect the settled restitution.

The current values by which restitution amounts for wildlife species are calculated have not been changed since 1985, with the exception of the rules governing the trophy wildlife species which were adopted in 1996.

Since then, economic factors such as inflation and real dollar equivalents have eroded the deterrent power of the current restitution values for wildlife species. In addition, the cost of the Department to administer this program in enforcing the rules has increased for the same economic reasons.

Research indicates that the Consumer Price Index has increased 1.677 points between the time of 1986 and 2003. The proposed amendment would increase the restitution values to reflect the change in the CPI, which is necessary to maintain recovery values similar to the original values relative to current economic factors.

The proposed values were produced by multiplying the current value by 1.677, then rounding to the nearest 50 cents. This table includes one example of each wildlife species for its current value and its proposed value. Additionally, I have provided each of you with an entire list of the animals divided into value groups.

The proposed amendment to the Texas Administrative Code 69.30 concerning trophy wildlife species changes the dollar value coefficient used to calculate the final restitution value for white-tailed deer, mule deer, pronghorn antelope, and desert bighorn sheep.

This proposal reflects the approximate current market value of trophy-quality hunting opportunity for the four big game species. The proposed dollar value coefficient for each species was obtained by deriving a function for the curve from the lowest Boone & Crockett score for which trophy restitution can be assessed through the highest Boone & Crockett score, intersecting the mean market values for each, which were obtained by consulting department personnel, landowners, and published advertising for trophy hunting opportunity.

COMMISSIONER BROWN: Why the discrepancy between white-tailed and mule deer?

MS. BISHOP: There is a difference in the value as perceived by the general public in those two species for hunting them.

COMMISSIONER BROWN: Between the Boone & Crockett mule deer versus a white-tailed?

MS. BISHOP: Yes, sir.

COMMISSIONER BROWN: All right.

MS. BISHOP: The proposed changes in the current formula are highlighted in yellow. This amendment also removes references to elk because the Texas Legislature in 1997 designated elk as an exotic species, and the Department no longer possesses regulatory authority with respect to that species.

COMMISSIONER MONTGOMERY: Kris, what — just the multiplier in the parentheses, the 1, 1, 5 and 10 — what is that factor? What's that variable? You got a couple variables —

MS. BISHOP: On which one? I'm sorry.

COMMISSIONER MONTGOMERY: Well, in each of the formulas there's a —

MS. BISHOP: The basic —

COMMISSIONER MONTGOMERY: — just one way of grossing it up to get it somewhere where it's around what we judge more today to be —

MS. BISHOP: For example, the way the formulas run, they take the gross score when they scored the deer and they subtract 100 because the trophies start at the given numbers, the 100. And then they'll multiply each point over that — well, they're square each point over that, and then they'll multiply it.

In our previous formula it was a dollar. When we went out and did some research, and actually, if you look at the values that — there's a ton of information out there on white-tailed deer, and so we took their menu pricing, basically, of what it is and applied it to our formula and then scaled the graph — according to the old graph, scaled the new graph, and that's where we came up with that 1.65 now.

COMMISSIONER MONTGOMERY: The $5 and the $10 for prong-horn and bighorn is just a way of grossing it up to get it to where it's related to market values —

MS. BISHOP: To the value that it is.

COMMISSIONER HOLMES: Am I reading this correctly, Kris, that you lowered the pronghorn —

MS. BISHOP: Yes.

COMMISSIONER HOLMES: — from $5 to $2?

MS. BISHOP: Yes, sir, we did, and what we were charged to do was get a current market value, and we went out and we checked landowners and hunting leases and what they advertise and what they — and pronghorn antelope hunting is not as valued as highly as highly as it was.

And also, the mule deer — if you'll notice, they're — actually, their base — their coefficient didn't change, but it doesn't really become a factor until they get about a 110 in their score — they're not really considered a trophy. So that kind of brought the value of those down a little bit.

COMMISSIONER PARKER: And so the proposal on pronghorn — you said scores less than 50, these will actually have an increase on the proposed restitution. But if it scores —

MS. BISHOP: Yes, sir.

COMMISSIONER PARKER: — 51 then we will have a decrease?

MS. BISHOP: Yes, sir. There'll be a time when it will — because of the base value increase, we multiplied the base times 1.67, so there'll come a time in the score where eventually it will be — it will sink below what it was.

COMMISSIONER HENRY: I recognize what's being done with regard to market value. I have to admit that I'm a wee bit concerned that this could be misconstrued in some quarters as to our lowering our values and encouraging criminal activity in that regard. So I hope that's explained fully.

MS. BISHOP: Well, actually, a lot — by far, our trophy species are taken at a level of a violation that's usually a Class A or State general felony or sometimes a felony. But most of the time when the trophy ones are taken, it's when they're trespassing, those type things, and we do have some pretty stiff penalties.

I don't think that they're going to look at that and say, Oh, that's — I can afford that, because it still carries a high criminal fine and possibly jail time.

COMMISSIONER FITZSIMONS: This is in addition to?

COMMISSIONER HENRY: Yes, this is just restitution. This is not combined.

COMMISSIONER MONTGOMERY: This is restitution on an animal, so —

MS. BISHOP: And totally separate and in addition to.

COMMISSIONER FITZSIMONS: In addition to all the other —

MS. BISHOP: To the criminal fines and/or jail penalties.

COMMISSIONER FITZSIMONS: From mark to market here.

COMMISSIONER HOLT: Well, pronghorn — if you got pronghorns on your place, they just went down. Right?

COMMISSIONER FITZSIMONS: Yes. I'm sure, as

they —

COMMISSIONER HOLT: Some landowners are not going to be happy about that.

COMMISSIONER FITZSIMONS: They're not poaching enough of them.

MS. BISHOP: Okay. On this slide we have an example of 150 Class Boone & Crockett trophy white-tailed deer. Using the current formula that we use today, that deer would be valued at $3,025.50. And then if you insert in highlight there the increased coefficient on the $1.65 and then the base of 81.50, it results in a value of $5,006.50, which is average on the current market for a 150 Boone & Crockett.

We received 275 public comments to the proposed changes in civil restitution assessment. Eighty-seven percent agreed; 13 percent disagreed.

COMMISSIONER HENRY: Could you give us just an idea of the kind of disagreement remarks that were made?

MS. BISHOP: Actually, we had a — we even had a couple of disagreements. They marked it as a disagreement and we had to score it as a disagreement, but their disagreement was that it wasn't high enough.

But then in a few of the disagreements, some people thought that how can we define the worth of an animal, and then some said that they would like to see — actually, they agreed with the monetary increase until we could show them that we were using that to put back into our wildlife program, which we do, and maybe that's just a failure on our part to explain that these funds go into General Fund 9 and that those do go back into wildlife management and enforcement, things like that.

Some people thought that these high prices on the trophy — they agreed with the base values but they didn't think that the trophy values were right; that it should be reserved for felony violations. But most, like I said, most of the big trophy animals are in association with a felony violation.

COMMISSIONER MONTGOMERY: Looking at your back here, Endangered Species listed at the back, on things like Atwater's prairie chicken, whooping cranes, peregrine falcons, where you got two cases — very small, fragile populations and a third, species where people spend a lot of money to reintroduce, should we look at higher penalties than $11,000?

MS. BISHOP: If it is listed an endangered, it has an extra — actually, an extra $1,000 because those things come and go off of lists sometimes. And if it's on a threatened species, an extra $500, so that — that wouldn't be the actual total. You'd have to add if it's an endangered $1,000, and add $500 threatened.

COMMISSIONER FITZSIMONS: Yes. Not to mention a Federal criminal which, believe me, is going to be a lot. Not much early release there, and you won't be heard by a justice of the peace.

MS. BISHOP: A nice thing about that, our Federal agents have been very kind in that when they file cases, they give us the civil restitution.

COMMISSIONER FITZSIMONS: Really? I didn't know that.

COMMISSIONER WATSON: How did you establish an armadillo being worth $13.50?

MS. BISHOP: Come on, now.

COMMISSIONER WATSON: I'd like to sell it.

COMMISSIONER RAMOS: Is our authority limited to getting fair market value or can we, for example, say the armadillo is really worth 50 bucks or are we — do we have to show that there's a market value approach?

MS. BISHOP: No, I believe the way the statute states is the Commission will come up with how they want to do it and —

COMMISSIONER RAMOS: So we're not limited to market value per se if we —

MS. BISHOP: No, sir. And actually, I don't believe that when you look at the list of the things — I don't actually have a slide on it, but the things that we consider when we give the base value don't have — only one consideration is of a market value, and that would be the — of the eight things that we consider, that would be the economics.

But we also consider a recreational value, aesthetic value, educational value, scarcity. It only plays that one part.

COMMISSIONER RAMOS: It's only one factor, so we could take any one of these and increase it or — based on these other factors, if we wanted to?

MS. BISHOP: Yes, sir.

COMMISSIONER FITZSIMONS: Regardless of what we fine, what do we collect?

MS. BISHOP: Well, actually, since the passage of the statute where we can withhold someone's license, we've had great results. In the last five years, we averaged total civil restitution $419,000 assessed, and we — of that, the wildlife is about $257,000.

We've collected on average the last couple of years anywhere from 75 to 80 percent of that. And I think each year you pick up people. Our restitution program takes about six months, once they have a violation, before we actually can — either they pay or we cut them off.

So I think each year you pick up people from the last group, and so I think our — actually, eventually, it will catch up with more of the little higher percentage rate.

COMMISSIONER FITZSIMONS: Thank you, Kris. It's taken some tough questions here.

COMMISSIONER MONTGOMERY: Since we're in Austin, we need to consider entertainment value for the armadillo, which is going to raise it up.

COMMISSIONER FITZSIMONS: I'm sure Kris would like to spend the next year working on the rest of your list.

But any other questions for Kris?

MR. COOK: This is on the docket for adoption?

MS. BISHOP: Yes, sir.

COMMISSIONER FITZSIMONS: With no further questions or discussion, without objection, I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Next item, License Buyback Program Funding Sources. Larry McKinney and Robin Riechers.

DR. McKINNEY: Mr. Chairman and members, for the record, I'm Dr. Larry McKinney, Director of Coastal Fisheries.

Robin's going to do the item but I would respond to Mr. Cook's question earlier or one of the members — I can't remember — about the number of licenses in buyback. Over the last three rounds, the number of applications for us to buy licenses back has run from 130 to about 150. That would be over the last year and a half.

We have typically purchased 70 or 80, hitting our higher limit there. We were able to go up to 90 the last round because the Sams Foundation allowed us to buy an extra 22 licenses, so that was good. That — just to answer that question.

So now I'll turn it over to Robin and let him lead us through this presentation.

MR. RIECHERS: Chairman, Commissioners, for the record, my name is Robin Riechers. I'm Director of Science and Policy for Coastal Fisheries Division.

As mentioned, this item proposes final adoption of the proposed changes to Chapter 53, Subchapter A, under fees, regarding the $3 surcharge to the saltwater sport fishing stamp.

The original surcharge that was added is set to expire on August 31, 2005. The proposal will continue the fee without a sunset provision, and we would again propose that the money be dedicated for use in the commercial license buyback programs.

The $3 surcharge raises about $1.37 million per year, and as Mr. Cook had mentioned, it has allowed us to purchase 1,174 licenses since the start of the program, which was in fall 1996.

This next slide provides the estimates beginning in the year 2006 that we would project that we could purchase both without the $3 surcharge and with the $3 surcharge. The red bar basically is a cumulative total of all that would be purchased.

When we consider that with the $3 we already have dedicated funds associated with commercial licenses in this program, and so that's the small blue bar that you can barely see there. And if you look at that projection to the end of fiscal year 2007 basically, considering the next three years, with both the dedicated funds and the $3 surcharge, you'd purchase about 550 licenses.

Without the $3 surcharge, you'd be down to about 50 percent of the licenses. If you project that out through 2009, it — with the $3 you're at about 800 licenses. Without the $3 you're at about 80 licenses.

So bottom line is without the $3 surcharge, your ability to purchase licenses is going to be reduced by about 90 percent. We will only purchase about 10 percent of what we can purchase with the $3 surcharge.

Through public hearings, e-mails and the Internet, we've received 212 comments on this proposal at this time. Eighty-two percent have been in favor of the proposal and 18 percent have been in disagreement.

And in anticipation of the question of how they disagreed, we basically have had those disagreeing in that no one should be paying for this kind of buyback program. You know, it should come from other funds. And down to the fact that we just don't want to see our license fee raised in any way.

At this time I'd be happy to answer any questions

COMMISSIONER FITZSIMONS: Questions for Robin on the buyback?

COMMISSIONER RAMOS: Would it make sense that if we — if the surcharge were $6 that we would double the number of licenses that we could buy back?

MR. RIECHERS: Well, you would double your opportunity. Right now, the licenses and the license buyback is predicated on a — it's a voluntary system, so it's predicated on the number of applications that we receive.

Now, we could always go up on the value we're willing to pay, but at this point in time we've matched that value we're willing to pay with basically the amount of funds we're receiving each year. So we're kind of — as Larry mentioned, we purchased 96 in this last round, and the total dollars spent there was — for the Department was around $650,000.

So it's pretty well matching our revenue stream in, revenue stream out.

COMMISSIONER RAMOS: My only comment is as significant as this issue is, I personally would be in favor of a greater surcharge. You know, the consumer, the actual fisherman, would benefit by the added $3 or $4 or $5. Even $10, in my opinion, would be a reasonable surcharge in view of what we could get accomplished. But that's just my opinion.

COMMISSIONER FITZSIMONS: Robin, would you review for the other Commissioners that information you gave the Committee about how fast you could speed up if you did have a higher surcharge?

MR. RIECHERS: Yes.

COMMISSIONER FITZSIMONS: I know that probably wasn't something you were anticipating, but you did such a good job.

DR. McKINNEY: Robin's always ready, Mr. Chairman. He got ready for it.

COMMISSIONER FITZSIMONS: — got award last night.

MR. RIECHERS: And one of the ways we looked at that was if we did go up to about a $3 million per annual basis, and with that, if you compare licenses that are left, which is a little different than what I just gave you, we would be at 1,279 licenses left in 2007, and you would reduce that by another 150 or so in just three years in 2007 with $3 million.

And if you go out to 2009, you're at about a point where you could have 823 licenses left, which is getting close to around — and this is kind of a guess because it's based on the number of people who hold both bay and bait licenses — but you would be getting close to a number of about 500 vessels out there at that point in time.

COMMISSIONER FITZSIMONS: Have a lot of vessels with combined licenses?

MR. COOK: Robin, that is correct. Depending upon, as we watch the industry, as we gear back the leads and, you know, the other factors coming into play, we can adjust this fee — this Commission can adjust this fee — if we think it's necessary —

MR. RIECHERS: Yes, sir.

MR. COOK: — at any point in time?

MR. RIECHERS: Yes, sir.

DR. McKINNEY: Now, this Commission has given ‘‘ make an authority on this to —

MR. RIECHERS: We would go back out to public hearings and — and you could raise the fee at any point in time. Yes, sir.

MR. COOK: We could do that at any time?

COMMISSIONER HOLT: But your saltwater licenses are down, if I remember, looking at the years, from Mary or somebody. Is that correct?

MR. RIECHERS: Fishing licenses have been down a little bit, but overall we can't really discern where that — that sorts out there. Combos are down a little bit to some how that —

COMMISSIONER HOLT: Combos are down in saltwater —

DR. McKINNEY: Well, fishing licenses are —

COMMISSIONER HOLT: — fishing licenses?

MR. RIECHERS: — so the difference between — COMMISSIONER FITZSIMONS: But the saltwater stamp hasn't been down.

MR. RIECHERS: Well, it's down, but if you account for those that are included in the Super Combo who say they participate in saltwater fishing, it's actually still on an increasing trend.

COMMISSIONER RAMOS: So there's no direct relationship that we necessarily would have less licenses, or that the licenses are dropping because of the fishing or the price? In other words, we don't have anything to indicate that the price is what's driving the numbers down?

DR. McKINNEY: No. As we talked about, I guess, at one briefing a few months ago, we have been adding 2,000 new saltwater anglers a month for the last six years, according to our license sales.

COMMISSIONER HOLT: According to your license sales.

DR. McKINNEY: People buying Super Combos — it's hard to sort them out but that's — if you just strictly by license, according to that, that's what — so it's —

MR. PARKER: Two thousand a month.

COMMISSIONER FITZSIMONS: That is pretty incredible.

COMMISSIONER HOLT: I'm still confused. I thought the numbers was — Mary or somebody was showing some —

MR. FITZSIMONS: Yes, but that was total fishing license sales down.

COMMISSIONER HOLT: Oh, okay. So what are we thinking — freshwater is dropping dramatically? They're — if you're going up 2,000 a month, then what's freshwater?

DR. McKINNEY: It's mostly the — it's the people switching over to Super Combos. I don't know if there's any going down in freshwater —

COMMISSIONER FITZSIMONS: — also down. It was down 2.9 percent.

COMMISSIONER HOLT: And that — weren't they down? Combos, too?

COMMISSIONER FITZSIMONS: Yes, 2.9.

DR. McKINNEY: That's this year. I mean, our data — we're — the numbers I'm talking about 2,000 were last year. We haven't included this year yet, so it's going to be some changes.

COMMISSIONER FITZSIMONS: And hunting, yes. If you look at just one year, the trend isn't apparent here. For the first time that I remember, hunting is actually up 2 or 2 percent, which you —

COMMISSIONER HOLT: Oh, yes. No, you have to look at some —

COMMISSIONER FITZSIMONS: — what I call the probably the rain factor.

COMMISSIONER BROWN: You know, to second Donato's proposal, I would agree with him that I think it's something we ought to look at, and I think we ought to start the process.

COMMISSIONER FITZSIMONS: To accelerate the buyback? And the justification being you can accelerate the buyback under the market conditions that we have, which I think is a fairly sound argument.

COMMISSIONER HOLMES: Marketing conditions can change.

COMMISSIONER RAMOS: Exactly. But the sooner — I think if we recognize and accept that this is a significant issue, I think we need to be more aggressive. The sooner we tackle it, the better it is.

DR. McKINNEY: And certainly, and Robin's staff, we do all kinds of projections. We can certainly report back to the Commission in November, give you a better view on that, because a lot of things come into play that you begin to get some — the price resistance and that — you know, if we try to hold the line on the — if it's a voluntary system, you either buy or you don't. But we can certainly report —

COMMISSIONER FITZSIMONS: I think we're asking for that. We'd like to see what the result would be because it makes sense to everybody that you take advantage of those market conditions when they're present.

DR. McKINNEY: All right. We'll be glad to report back to you.

COMMISSIONER HOLT: Should we ask for essentially kind of a recommendation from staff of what would be appropriate dollar amount relative to [indiscernible] licenses and —

COMMISSIONER FITZSIMONS: Right. We'll look for 706.

COMMISSIONER HOLT: — I mean, is $6 the right number, $10 the right number, or some number?

COMMISSIONER RAMOS: It just seems to me that if a person is truly dedicated to fishing and improving the conditions that $10 in this day and age is not of any significance that would hurt anyone if, in fact, we can make some more substantial inroads quicker.

COMMISSIONER FITZSIMONS: I think Commissioner Holmes hit the nail on the head is that you just show us the range of impact that those different settings would yield, and then the Commission can make a determination of the balance.

MR. COOK: Might I suggest — I think as much as anything here, the important issue brought to you — the first important issue brought to you today is do we extend the surcharge. And in the meanwhile, between now and, you know, the implementation period, we can certainly work on this process, review this process, decide what an — you know, what an appropriate level for that surcharge would be.

I think at this point in time I would ask you to consider that our question as much as anything — Robin, correct me if I'm wrong — is to extend the surcharge. Now, we built ourselves a cushion of time here. We — you know, obviously, we've got to — we can go either way.

If we're going to increase the fee, we've got to go back out to the public. We can't do it today.

DR. McKINNEY: Yes, sir. Sir, that's — thank you for —

MR. COOK: And I would — and Robin and you guys, you and Doc — I would say that the decision of whether or not to extend is an important decision at this moment in time. And then if we go forth and study the situation of where it should be priced, I think we've got time to do that and can do it in a very orderly manner and keep headed in the right direction.

COMMISSIONER HENRY: Bob, let me ask you a question. You're saying that we need to go to the public. Is this something — I understood that there was something that by statutory authority, Commission had authority to do.

DR. McKINNEY: I think what the Executive Director is saying is a very important point here is that when you — the serious extension is important here because if you delay that, said you wanted to increase it, we only have one shot at that in a year to do it, because if you make that approval it has to go into the license system and —

COMMISSIONER HENRY: I'm not questioning that. I'm saying is it something that we have authority to do?

DR. McKINNEY: Yes, sir.

COMMISSIONER HENRY: Then we don't have to go — it's a courtesy that we extend?

DR. McKINNEY: That's correct.

MR. COOK: That's right.

COMMISSIONER HENRY: And is that —

MR. COOK: That is a courtesy.

COMMISSIONER HENRY: Okay. I just wanted

to —

DR. McKINNEY: Well, you have to do it by rule.

COMMISSIONER HENRY: Then we don't have the authority?

DR. McKINNEY: The Legislature that delegated authority to you to issue a saltwater stamp for a price range of whatever you think is appropriate, so that you have the authority for the stamp and you can have authority to set the price of that stamp as you feel appropriate by rule at any time.

You don't have to go to the Legislature to do so.

COMMISSIONER FITZSIMONS: That's good.

MR. RIECHERS: We would have to republish in the Texas Register.

DR. McKINNEY: Two things happen. An increase is a pretty significant change. That would be a republishing. Then we have the PAC co-limits of the fact that — of our license year. This has to go into that license system, so it can only happen on the cycle that matches — they can't do it more than that.

COMMISSIONER HENRY: Thank you.

COMMISSIONER PARKER: If we did it, it would be for next fiscal year?

COMMISSIONER HOLT: It would be after the end — the price increase. Yes, sir. The extension you're asking us to vote on tomorrow.

COMMISSIONER FITZSIMONS: Commissioner Montgomery.

COMMISSIONER MONTGOMERY: I don't know about the reasons why people sell licenses. It might be interesting, though, to ask our team to look at whether we could make forward commitments to purchase — talking about too many in one year, it's going to run the price up.

If we can smooth it out and a lot of people plan for it, it might keep our average price down, but like a lot of them, I'm going forward. If people plan ahead and that sort of thing — I don't know if they do or not.

DR. McKINNEY: We can look at those. Yes, sir.

COMMISSIONER HOLMES: Do we spend the total amount allocated every year?

DR. McKINNEY: No. No, we don't, and that's why — and I think I — you asked a question like that last time. I want to make sure I'm answering that correctly because I didn't think I gave you the full answer last time.

We set the price — and Robin's going to get in — but we set a price which we're willing to pay for licenses. About $7,400 is where we are now. We get the applications in, 130, 140 of them, and the prices range from anywhere below that number to $100,000 and people think the — typically, it's that 80 or 70 or 80 that will fall within that range that we'll pay.

And we draw the line there. We will not pay above that. So we do have some money that will go forward, because we will not buy licenses above the number we set because we don't want to drive that price because, you know, we have to try and hold it.

When we originally started, it was around $3,000. We have escalated over the 14 rounds up to about $7,000. So we do have a little bit.

Robin, you might give me a little more detail on what we typically have.

MR. RIECHERS: Well, and in the last couple of years, we have spent basically equivalent to what's coming in. But from the very first year when this went into effect, we didn't have appropriation authority to spend when it first went into effect, so in effect, we've always been spending last year's money.

But as of last year, we didn't roll nearly $1.4 million. We rolled somewhere around 6- to $800,000 into the next year. So we're catching up with that as we move through time, and basically, our last year is the next fiscal year, and we would expect in the new two rounds, given the conditions and the numbers and the buyback we've seen in the last couple of rounds, that we probably won't have much balance rolling over at that point in time.

COMMISSIONER HOLMES: The point is that it's not an automatic assumption that if we increase the $3 to $10 that it's going to increase the buyback unless you change the value which you're willing to pay.

DR. McKINNEY: And you're going to get an issue in return because honestly, you'll have to offer more to sell them, and so the prices go up. Yes, sir. There's going to be some balance in there, so it's not — we're not double.

Not automatically doubling the number of licenses as we buyback because, one, they'll — those folks understand that. There's more money there. So the prices will very likely go up.

COMMISSIONER BROWN: Aren't you going to have diminishing returns anyway over time?

DR. McKINNEY: And that's my next point is that it seems like there's a group of people out there — at least, there's 293 of them that were out there August 15 — that think they can make a living out there shrimping.

So there's a group of folks that are in business, whatever that number is. And they're there for the business. They're not interested in selling their license. They're interested in shrimping.

COMMISSIONER RAMOS: But at least we'd have the revenue so it would be available so if market conditions drop for whatever reason, you're in a position of capitalizing —

DR. McKINNEY: That's absolutely correct.

COMMISSIONER HOLMES: There's not a term where we have to turn the money back somewhere, is there?

DR. McKINNEY: No, sir.

MR. COOK: Not that we know of.

COMMISSIONER HOLMES: And I'll withdraw that question.

DR. McKINNEY: Five million dollars in the summer, I'm not going to say that because —

COMMISSIONER FITZSIMONS: Okay. Moving right along.

DR. McKINNEY: I do get worried about leaving a pot of money setting out there.

COMMISSIONER FITZSIMONS: That is, I'm sure, user-based.

Okay. Any other questions for Robin or Larry on the surcharge fee?

If there's no further questions or discussion, without objection, I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Thank you, gentlemen.

Next, Item 6, the Cormorant Control Permit. John Herron.

MR. HERRON: Thank you, Mr. Chairman and Commissioners. My name is John Herron. I'm the Program Director for Wildlife Diversity here at Texas Parks and Wildlife.

Today I'm going to brief you on a proposal to allow the control of double-crested cormorants in Texas. This presentation is a follow-up to a briefing we gave you at the last Commission meeting. Since then, this has been out for public comment and is before you today as an action item and for consideration tomorrow.

Quickly, in background, what we're responding to is after several years of concern and comment made by State wildlife agencies, the Fish and Wildlife Service, the Fish and Wildlife Service issued a depredation order in October that became effective in November authorizing State wildlife agencies to establish cormorant control programs for double-crested cormorants.

Needless to say, that created quite a bit of interest. People asking us, What's Parks and Wildlife going to do?

In background, you know, we have two species of cormorants in the State — double-crested cormorant, which is the species addressed by the depredation order, and a neotropic cormorant, which is a coastal species slightly smaller than the double-crested.

The neotropic is a resident breeder, and I'll show you a map of that briefly, whereas the double-crested cormorant breeds in the Great Lakes and Great Plains states and winters here in Texas.

Double-crested cormorants, no surprise to anybody here, numbers have increased dramatically in Texas over the past 30 years. We now estimate there's about two million birds nationally. We've seen an annual increase of about 7-1/2 percent.

The increase is important, because at one point, this species was considered a threatened species in many of its breeding states. Much like the brown pelican in Texas, it had been hammered quite a bit by DDT, causing eggshell thinning and reproductive failure. So we're — both a blessing and curse now that this species has rebounded to the extent that it has.

This is a map just showing the wintering range of the double-crested cormorant. I don't know what the numbers mean, other than yellow means high density and blue means low density. And as you can see, in terms of wintering numbers, the highest concentrations of double-crested cormorants in the winter are in Texas and Louisiana and much through this part of the State.

The breeding range, again, as I mentioned before, largely are the upper midwest and northeastern states. We do have a few populations of the double-crested cormorants, much like Winter Texans, who have decided to stay here year-round now.

It's not quite as extensive as what this graph would indicate. There's just two or three locations we have them in Texas.

Just to show you, the neotropic cormorant, or what used to be called the olivaceous cormorant, this is its wintering range. Again, really winters throughout Texas. In terms of breeding, you can see it's really just limited to the Gulf Coast.

One of our concerns in setting up this proposed regulation is going to make sure the people understand that this order applies to double-crested cormorants. Neotropic cormorants still remain protected by both State and Federal law.

In short, the proposal we have in the regulation is that we would permit landowners or lessees or landowners' authorized agent to conduct cormorant control activities. Basically, we would issue permits to individuals. This is our way of designating them as agents of the Department under provisions allowed by the Federal Depredation Order.

We're asking those applicants to tell us specifically where they are going to conduct cormorant control. We're proposing an annual fee of $12 to cover the costs of administering this program. And we're also allowing that permittee to authorize others to basically serve as subagents to them, simply by giving them a copy of their permit, signed over to that individual with the original signature.

So if I'm a property owner and I have a permit, I can authorize other people to conduct cormorant control on that location just by giving them copies of my permit.

And one thing — we have had discussions with the Fish and Wildlife Service over this, as Mr. Cook is well aware. They were rather surprised at our proposal, and looking at and reading the regulations said, Well, by gosh, you can do this, because we are authorizing you to have a program. We are authorizing you to designate agents.

But the one thing they really wanted to make clear to us is that the intent of the order and the limit of our authority under this order is to issue permits to protect public fisheries' resources.

You know, our belief is that these cormorants know no boundaries. They may be roosting on somebody's ranch, but they're likely feeding in public waters. But for those individuals who either have fish farms or who might want to conduct control just for the benefit of their own stock tank, they can get a Federal permit, and that's really the more appropriate route.

Our permit is going to be fairly broad and should cover those individuals who would not qualify for Federal permits. Some people probably have a choice of going either Federal or State. If they have a Federal permit, our law says no State permit is required.

And then if they have a State permit from us, there would be no permit required from the Service. So there'll be a small segment of people that could go either way, but I think our permit's going to apply more broadly.

Again, I mentioned our permit only authorizes the take of double-crested cormorants. Basically, we're telling the landowners or the permittee, you know, This is up to you. Just like a duck hunter or just like a game bird hunter, you need to be able to identify the species that you're conducting control activities on.

It's frankly not so easy with cormorants. It's kind of like trying to tell the difference between a sparrow. You got to look closely. The neotrop is a little bit smaller, little bit browner in the winter, shorter tail, but people are going to have to pay attention to what they're doing.

The other thing is that the reason we're doing this permit thing is we are required by the Service, the Fish and Wildlife Service, to report back to them on activities, so we need to require anyone who's doing cormorant control to report to us so that we can meet the requirements of the depredation order. So the regulation does stipulate a reporting requirement.

Our public comment — we've had about 300 people comment on the regulation. Eighty percent have been in agreement. About 10 percent have disagreed, and about 10 percent had no comment.

Interestingly, the disagreement we have with the regulation is really not with the regulation itself. We have two — three things that have come up. One is public entities have contacted us and said, Well, wait a minute. The way you have your regulation phrased, it's not clear to me that a river authority, a city or a county could apply for a permit.

And it was a good question, because it was our intent that they be able to do that. And we looked at our language and realized, as I have here in the slide, we mention private lands and waters — really wasn't our intent.

What we really meant to say was, We're issuing permits for specified lands and waters. And so we are suggesting to the Commission that this amendment be made to the regulation so that we can get that broad application that we really intended to have.

The other two comments we had, and I know you're surprised that anybody would oppose this, basically, we had a number of anglers and others contact us saying they don't think they need any stinking permit, and what do we think we're doing.

Clearly, we do not have a choice. This is a Federally and State-protected bird. There has to be some means of us authorizing agents and thus designating who's allowed to do this. It's just not something we can say they're unprotected. That is not an option, given though it's under Federal law.

The other comments that we had very frequently were people who felt we should be paying them to control cormorants, not asking them to pay $12, or asking that we consider reducing the fee.

Again, $12 is what we estimate it's going to cost us to administer this program. It is going to take staff time. We do have to compile data. I'm sure we're going to have to chase down some permittees to make sure they give us their annual reports, and so we still are recommending that $12 fee.

With that, I'd be happy to answer any questions you have.

COMMISSIONER FITZSIMONS: John, the laughter you heard was that there seem to be a group of people who make public comment only to tell you, No comment.

MR. HERRON: Yes. True. Yes.

COMMISSIONER FITZSIMONS: And supposedly go to the trouble.

MR. HERRON: Yes. Absolutely. Absolutely. I guess there they want to voice their opinion —

COMMISSIONER FITZSIMONS: They don't have one.

MR. HERRON: — I think in some of those cases, people are saying, Well, you know, I'd really support this if you'd make it free or whatever. I don't know, so, you know, qualitative support maybe.

COMMISSIONER HOLT: They want to reserve the right.

MR. HERRON: That's right.

COMMISSIONER FITZSIMONS: Any other questions for John?

I want to mention John is moving on to the private sector, and —

MR. HERRON: Yes, sir. —

COMMISSIONER FITZSIMONS: — this will be his last Commission meeting, and I want to thank you for all your hard work. I've known you for a long time before I came on the Commission. You've always done great work, and I appreciate your service. Good luck.

MR. HERRON: Appreciate that, sir. Yes, I won't be far. I'm going to go to work for the Texas Nature Conservancy, so I'll just be down the road. And really have enjoyed the years I've had here at Parks and Wildlife. I've enjoyed working with all of you and all the staff here.

Yes, time to go do something new, so I'm really looking forward to some new challenges. I have really appreciated working with y'all and wish you all the best as well.

COMMISSIONER FITZSIMONS: Well, our loss and their gain, so we appreciate all your hard work.

MR. HERRON: Thank you, sir.

COMMISSIONER FITZSIMONS: Good luck, John.

COMMISSIONER HOLT: Yes, John. Thanks.

COMMISSIONER FITZSIMONS: Anything else? Any other questions or discussion?

Without objection, I'll place this item on the Thursday Commission agenda for public comment and action.

Next item, Item 7, the rule via Mike Berger.

MR. BERGER: Good morning, Mr. Chairman and Commissioners. I'm Mike Berger, the Director of the Wildlife Division, and I'm here today first to brief you on those portions of the Agency rule review process that involves the Wildlife Division.

Specifically, these are Chapters 52 and 65. As Ann described to you earlier, the Government code requires that each agency must review all its regulations at least every four years and readopt as is, amend, or repeal, and certify that the need for the rule continues to exist.

The notice of intent to review these chapters, 52 and 63, was published March 5, 2004, in the Register. And we have received no public comment on the intent to review.

Chapter 52 consists solely of the Department's stocking policy, and Chapter 65 has a number of subchapters, including the Statewide Hunting and Fishing Proclamation, the Triple T permit, the deer management permit, threatened and endangered, Public Lands Proclamation, Bobcat Proclamation, Commercial non-game, scientific breeder, and wildlife management area association hunting leases.

After review, we are proposing that there be no changes to Chapter 52 and that there be no changes to Subchapters A, G, J, O, and V, dealing with the things you see listed there.

We have identified several sections which must be amended, and we're today seeking permission to publish those proposed changes to Chapter 65 contained in Subchapters C, with Triple T, the deer management permit, Public Lands Proclamation, and Scientific Breeder.

We need to do this so that we will comport with the recent reorganization of Chapter 53 concerning finance. Most of these subchapters here contain financial information, and we're eliminating that financial information from those and consolidating them in Chapter 53.

So we would remove all references to specific fee amounts and update the cross-reference back to Chapter 53. In the Public Land Proclamation, we would eliminate provisions regarding the Conservation Passport, which has been discontinued, and we would change the word "minor" to "youth," which makes it fully consistent with all TPWD terminology.

The one substantive change is — regards the second chance for special permit applications. At present we try to return invalid applications to the applicant if they have made some error or some omission in the application process.

And as you know, public hunting is very popular, and we're now getting on the order of about 70,000 permit applications each public hunting cycle. And there are about 1,500 of these that have some error or omission.

But with the deadlines and the number of staff that we have, it's just not possible to try to get back to those people to tell them what their error is and have them amend it in time for the drawing. So we would propose just to eliminate that provision, and if they have an invalid application, it's an invalid application, and they will not be considered in the drawing.

With that, I'll be happy to answer any questions.

COMMISSIONER FITZSIMONS: Any questions for Mike?

No further questions or discussions, without objection, I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Mike, you're still up, electronic license sales.

MR. BERGER: Again, Mr. Chairman and Commissioners, I'm Mike Berger, Director of the Wildlife Division, and I'm here now to brief you on changes that we're proposing to our electronic licensing procedures.

Currently, a person is allowed to buy a license over the telephone and this year, the upcoming year, the Internet, and to be issued an authorization number in lieu of physical receipt of the license, and that authorization number is valid for 20 days.

However, the person currently is not allowed to hunt deer or turkey, because those require a license tag, and so the person must have the license in his possession physically in order to be able to attach it to a harvested animal.

You will recall that earlier this year in April, you adopted new rules that eliminated double tagging for deer so that if a person is hunting on an MLD property or LAMPS or a Forest Service antlerless permit or any one of our special drawn permits that they require only that permit and not a license tag on their animal.

So we would propose an amendment that would allow the hunting of deer just with the authorization number in hand, provided that they have the MLD, LAMPS, Forest Service, or other special hunting permit in their possession.

We received a number of comments on this. Sixty-four percent agreed and 36 percent disagreed with the proposal.

I'll be happy to answer questions.

COMMISSIONER HOLMES: What was the basis of the disagreements? Was there a general —

MR. BERGER: Well, some allege that there might be enforcement problems with that, but the use of the electronic number — I mean, if you want to hunt doves and you have an authorization number, you can hunt doves. You can hunt any non-tagged-requiring animal with just the authorization number.

So I don't believe that there is an enforcement problem. Some people don't understand the concept that we've eliminated double tagging, I think, and others just think you ought to have your license with you all the time.

COMMISSIONER FITZSIMONS: Well, you can if you want to.

MR. BERGER: You can if you want to. That's right. And after 20 days you should have it and carry it with you. But the largest number had to do with enforcement.

COMMISSIONER FITZSIMONS: Now, other states that some of the Commissioners may not be familiar with, other states have done this. I notice that — I don't know how many, but I'm familiar with a few where you need to call in and give them your credit card number and get the number and go.

MR. BERGER: Right.

COMMISSIONER MONTGOMERY: Also, as I understand it, we — ours are mailed. You do get it but then it's mailed to you and you can print it out because of the quality of the paper.

MR. BERGER: Right. You can print out a authorization number.

COMMISSIONER FITZSIMONS: And it is good for out-of-state also. Right?

MR. BERGER: Oh, any license purchased can do this. Right.

MR. COOK: I think — Mike, correct if I'm wrong — the big thing that this does, I think, is on MLD properties — I mean, we've got the — you can get the number now and bird-hunt and those kind of things. But previously, we've had to double-tag. You had to have a real license in your hand that you tear a little tag off of on MLD property — now, stay with me here — and also you were putting on an MLD tag, one of those pink things, that had exact same information all over again, including cut-out dates and all that stuff.

So what this really does is if a person has not actually received his hard copy of the license but he has a valid number, he can deer-hunt.

MR. BERGER: That's correct.

MR. COOK: — on MLDP properties where they have the MLD tag.

MR. BERGER: That's correct.

MR. COOK: And it simply eliminates that double-tagging.

COMMISSIONER FITZSIMONS: There's no sense in it. I got to give credit where credit's due. My 13-year-old son and a friend of his came up with this. They called me and said, Dad, why do you do this?

I didn't have an answer, so I called headquarters.

COMMISSIONER HOLT: If you're on MLD land now, if I'm carrying a license with tags, I still don't have to ‘‘

MR. COOK: That's correct.

COMMISSIONER MONTGOMERY: The child proves the parent is wrong.

COMMISSIONER FITZSIMONS: Exactly. I think it's a real good step for us. The 13-year-old thinking clearer than the Chairman.

COMMISSIONER MONTGOMERY: David Sinclair gave me a good briefing on the ins and outs on this from an enforcement standpoint. But if we could watch what other states are doing, I do think it's great customer convenience if we can figure out how to go-tag was at the right time. I understanding that tagging for law enforcement is a tough one and a tricky one. We got to get right, but —

COMMISSIONER FITZSIMONS: Anything that makes it easy to sell licenses.

COMMISSIONER HOLMES: Easier than trying to —

COMMISSIONER FITZSIMONS: Mike, good work getting this one streamlined and done.

Any other questions for Mike?

No other questions or discussions, I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Thanks, Mike.

MR. BERGER: Thank you.

COMMISSIONER FITZSIMONS: Clayton Wolf is up on Item 9, Triple T Regulations, CWD.

MR. WOLF: Mr. Chairman, Commissioners, for the record, my name is Clayton Wolf and I'm the Director of the Big Game Program.

This morning I'm going to present to you some proposed changes to our Chronic Wasting Disease Testing Requirement within our Triple T regulations.

First, I need to do a brief overview of some of the major components of the existing regulations. If someone wants to move deer in Texas by Triple T permits there are some requirements. And in addition to that, they must do some chronic-wasting disease testing of those deer coming from the trap site.

This requires that they test 10 percent of the number of deer that are proposed to be moved from that trap site. The sample size shall be no less than ten animals and no greater than 40 animals, so even if they want to move one deer, they need to submit ten samples. Or if they want to move 600 deer, they're — they have to submit no more than 40 samples.

And the required samples, as our regulations currently read, indicate that they must test negative, and that's verbatim, and that term is going to become important here in a couple seconds.

Through the last several months or up to a year, we've discovered some issues with our chronic-wasting disease regulation language, the testing language. Texas Veterinary Medical Diagnostic Lab reports CWD results as not detected location or detected.

In other words, before we can issue a Triple T permit, someone sends us their test results to prove that they have done the testing. You will recall I said that the test results must be negative. TVMDL doesn't produce a negative test result, so obviously, there's some inconsistencies there that need to be fixed.

Just for your information, not detected is the gold standard that we're looking for. This means that someone submitted the proper portion of the brain stem. The lab was able to locate a specific anatomical body, and then they tested it, and the prions were not present.

Location means that someone sent in a sample but the lab was unable to detect or find that specific anatomical body. They still will test the sample. They still will stain it, and they still will indicate whether there are prions there or not.

But it could be from a totally different region of the spinal column, and so we had several results this past year that were location and we obviously didn't know if they were submitting the proper portion.

And then finally, detected means that prions were detected no matter what was submitted. Additionally, we realize that our Triple T regulations do not specify a time frame for sampling and testing. Most of us assume that there would be testing done early in the hunting season and then those results will be used for approval and for moving of deer.

However, some assume that test results would be good for many years, and at least one urban area contacted us and was asking if they could use roadkill samples during the summer. And fact of the matter is we didn't define the time — what the adequate time frame was.

We took these issues before our White-tailed Deer Advisory Committee. We studied the issues and looked for recommendations, and the recommendations are published as a proposal in the Texas Register.

They read that the required samples must test not detected. This is pretty straightforward and pretty simple. Didn't take a whole lot of discussion to get here.

Additionally, test results are not valid if the sample was tested or collected prior to October 1 of the previous year. That's the previous permit year. Our Triple T season starts October 1, so theoretically, if someone wants to move deer this year, this upcoming season, they can use samples that were tested and collected at any time after October 1 of last year, with some limitations.

These test results cannot be used in more than one trapping season except in cases where the full allotment of deer was not moved the previous season. This can best be described with an example.

If we approved someone to move 100 deer last year because they submitted ten samples, if they moved all 100 deer, they're going to have to start over this year and meet the minimum requirements. However, if they only moved 50 deer, they can apply and move — and be approved, or at least meet the CWD testing requirements for up to 50 animals this year.

But once they reach that 51st animal, then they will have to — the minimum requirements will kick in and they'll have to do more sampling.

So basically, we feel that these test requirements will generally encourage annual sampling, but they do allow for those individuals that do some unique things within the Triple T world to move deer early and possibly collect their samples later in the year.

I also need to indicate to you that it's possible that you may see us come forward within 12 months with more CWD rules. Basically, we view these changes as something to get us through this season.

Texas Wildlife Association has convened a group of veterinarians, primarily from the deer industry, and we are consulting with them and looking for recommendations for the future, and so through these next months we're looking at possibly changing gears in our total CWD monitoring program after we get through Year 3, and so we could come back with a complete package that deals with CWD monitoring in all programs in Texas.

And I'll take any questions.

COMMISSIONER RAMOS: It seems to me that there's a lot of landowners — well, not a lot but there's some — who have been consistently testing, and my only thought would be that those landowners that have been testing, let's say, for one, two, or three years, that perhaps as we go into the future that we recognize them and perhaps give them a different category because they have historically done — gone the extra step to do all this testing, and perhaps to where they may then be exempt from testing.

I'm just thinking down the road at — because I know it takes a lot of effort, and we have to recognize those type of landowners.

MR. WOLF: Yes, sir. I agree. In fact, that's been the general tone of discussions for — not only for Triple T deer but also the Scientific Breeder Program and any monitoring. And in fact, Monday this group of veterinarians will get back together, and generally speaking, that's the direction they're going is how do you ‘‘ once we've identified that sampling has been sufficient or good in an area, regardless of the program, can we lower the bar or possibly get rid of the bar.

And that's what this group of veterinarians is trying to develop.

COMMISSIONER RAMOS: And what it would do, it would encourage those landowners that have not taken the initiative to —

MR. WOLF: That's correct.

COMMISSIONER RAMOS: — to take the initiative, and I think we get there faster.

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: That's a good point. I want to give credit to Clayton and the committee, the White-tailed Deer Committee, for wrestling with these questions, because I gave them the charge similar to what you're saying, of coming up with a real result of the testing.

You don't just test for the sake of testing. There's — something happens at the end. The problem is, and this is really — this is a good problem to have — is that no one's really familiar with how to design a protocol for success.

And most states that have gone through this have found CWD. Our problem is we got to plan for what happens if we find it. We don't have a very good idea or plan of what to do if we don't find it.

And you still have these Federal protocol issues to deal with, so this is what they're struggling with, and they're doing a good job of doing it. And I'm glad they're doing it.

And Chairman Bass is doing an excellent job of keeping it all on track.

MR. WOLF: Thank you.

COMMISSIONER FITZSIMONS: Any other questions for Clayton?

I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Any other business to be brought before this committee, Mr. Cook?

MR. COOK: No, sir.

COMMISSIONER FITZSIMONS: Hearing none, this committee has concluded its business.

We'll adjourn Regulations at 11:55 and move on to Conservation. Phil Montgomery.

(Whereupon, at 11:55 a.m., the Regulations Committee was concluded.)

 

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission

Regulations Committee

LOCATION: Austin, Texas

DATE: August 25, 2004

I do hereby certify that the foregoing pages, numbers 1 through 67, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Parks and Wildlife Commission.

9/8/04

(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731


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