Texas Parks and Wildlife Commission
Regulations Committee

May 25, 2005

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 May, 2005, 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:

PROCEEDINGS

COMMISSIONER FITZSIMONS: Meeting's called to order, and before proceeding with any business, Mr. Cook, do you have a statement to make?

MR. COOK: Yes, I do. Mr. Chairman, thank you, sir. A public notice of this meeting containing all items on the proposed agenda has been filed in the office of the Secretary of State as required by Chapter 551 Government Code, referred to as the Open Meetings Law. I would like this action to be noted in the official record of this meeting.

COMMISSIONER FITZSIMONS: Thank you, Bob.

First thing off this morning is the Regulations Committee. I call that committee to order at 9:02. Before I get started with that — Mr. Holt's not here — but I understand we have a new commissioner that we need to welcome.

I want to tell you all, in the last few years I've gotten to know Dan and his commitment to conservation. We're lucky to have him join us. All of you join me in welcoming Dan.

COMMISSIONER FRIEDKIN: I'm honored to be here. Thank you.

COMMISSIONER FITZSIMONS: You got here just in time for all the fun, Dan.

COMMISSIONER HOLMES: Just a couple of days left in the session.

COMMISSIONER FITZSIMONS: The first order of business for our Regulations Committee is the approval of the previous committee meeting minutes which have already been distributed. Is there a motion for approval?

COMMISSIONER HOLMES: So moved.

COMMISSIONER HENRY: Second.

COMMISSIONER FITZSIMONS: Moved by Commissioner Holmes. Second by Vice Chairman Henry. All in favor please say, aye.

(A chorus of ayes.)

COMMISSIONER FITZSIMONS: Any opposed?

(No response.)

COMMISSIONER FITZSIMONS: Hearing none, motion carries. Committee item number one, Chairman's charges. Bob?

MR. COOK: Mr. Chairman.

Mr. Friedkin, so that you will know, generally we start our fiscal year along about September, in that vicinity, with a new set of Chairman's charges each year that the Chairman and the Commission would like us to put some focus to.

I'm happy to report to all of you at that this time that all of the Chairman's charges to the Regulations Committee have been addressed. When we get to the Finance Committee I'll provide you with a little legislative update.

There are still a couple, three bills out there — as I think most of you are aware — that we are very interested in and very involved in. And as we hear anything on them we will keep you posted. Thank you, sir.

COMMISSIONER FITZSIMONS: Thank you, Bob.

Committee item number two, the 2005-'06 Migratory Game Bird Proclamation. Vernon Bevill. None of you look like Vernon.

MR. GEORGE: Sorry about that, sir.

COMMISSIONER FITZSIMONS: No. That's a good thing.

MR. GEORGE: Mr. Chairman, Commissioners. I'm Ron George. I'm the Program Director for Wildlife Science Research and Diversity. Mr. Bevill can't be here today, but Dave Morrison will handle the briefing.

MR. MORRISON: Mr. Chairman, my name's Dave Morrison. This briefing item this morning concerns the white-wing dove and the proposal that was presented to the Commission last April. At that time we presented to you for your consideration the possibility of expanding the existing white-wing dove zone — that portion here in red — and moving that zone line east to I-37.

This action was being considered to take advantage of the white-wing population in and around South Texas and in the San Antonio region. As part of that proposal we also made a suggestion to reduce the bag limit from five mourning dove to three mourning dove.

Even though the Service sees merit in the increased harvest of white-wing dove, they continue to have concerns about the late nesting of mourning dove as well as the increased harvest of mourning dove in this area. With the expansion and subsequent reduction in the bag limit, we believe the harvest of mourning dove would be basically a no-net increase, which is a key component to this proposal.

We will not have any definitive action taken on this by the Service until the Service Regulation Committee meets on June 23 of next month. But we felt it prudent that we keep you gentlemen aware of what we think's going on.

We believe that this original proposal may meet with some difficulty in getting concurrence from the Service without conducting nesting studies and looking at how things are going on, particularly the timing of nesting studies. Studies of this nature are broad in scope and require a substantial investment of time and money.

As a result we are prepared to develop an alternative plan in the event that our current proposal is denied. Should the Service reject our current proposal, we will counter with a little bit different twist. I'm going to shift that white-wing dove zone from I-37 to Interstate 35 and south of Highway 90.

And along with that we're looking at changing the bag limit from three and moving it back to four or five. However the final decision with respect to bag limit will continue to be based on the fact that there will be a no-net increase in the mourning dove harvest.

Since action from the Service will occur after this meeting, June 23, I would also like to point out that for the final decision on the early season of migratory game birds that the authority has been delegated to Executive Director Cook, after consultation with the Commission Chair.

As a result of the timing we wanted to make sure that you gentlemen knew what was going on and how this thing may play out. With that I'll be happy to try to address any questions you have on this issue or any other early migratory season structures.

COMMISSIONER FITZSIMONS: Dave, will you go in a little bit to the fledgling issue there? As I understood it when this first came up at the Game Bird Advisory Board, that really helped develop this proposal so that we could expand that opportunity around San Antonio.

As you move north — is this right — as you move north there might be fledgling issue for mourning dove, and that's the reason that you reduce the mourning dove bag in a white-wing zone from five to three.

MR. MORRISON: The bottom line with respect to — yes, there is an issue of timing of nesting. We have data from 30 years ago to suggest that birds in this area do nest later and that there's a high percentage of young birds still around come that time.

As part and parcel to why the Service has established the zone, that we can open the south zone no earlier than the Saturday near September 20. Part of what we're looking at also is that they're concerned about the mourning dove harvest, that there's some indications that the mourning dove have been declining.

Whether or not that's significant or not still remains to be seen. We're looking into different ways of addressing that. There are some banding studies that are going on. And we're trying to get our hands around it. They're also developing a national mourning dove management plan that takes all of this into consideration.

So the bottom line is, yes, it is timing, but it is also the harvest of mourning dove. That is why we made the recommendation or the suggestion to move from five in the aggregate to three in the aggregate. By reducing the size from Interstate 37 to 35 we believe that we don't necessarily have to go to three to have a no-net increase.

And probably something on the magnitude of four would result in the same harvest with respect to mourning dove.

COMMISSIONER FITZSIMONS: If you back to that map, of course the birds don't know where — well, they do that first day, they know where I-90 is. But right now — looks like Castroville, Hondo, that part of the world. And the landowners on the south end are essentially shut out of the opportunity. Is that right, Ron?

MR. GEORGE: Yes. We had David Dolton with the U.S. Fish and Wildlife Service came down last season and saw for himself the white-wings that we're coming out of Uvalde and Hondo. And he agrees that it was a super resource that you ought to take advantage of.

But he's, of course, concerned about the two issues: the late-nesting mourning doves and perhaps over/extra harvest of mourning doves. The nesting data that Dave mentioned 30 years ago shows that South Texas as a whole does have a lot of late-nesting mourning doves.

The problem is more acute on the coast than it is inland. So this proposal with the line running down I—35 should have minimal impact on late-nesting mourning doves.

COMMISSIONER FITZSIMONS: So the ruling will be made by the Service on the 23rd.

MR. MORRISON: Yes, sir. The Service Regulation Committee meets on June 22, 23 to address early season migratory birds. And at that time we will know whether or not they're going to accept the proposal that we presented to you in April.

And at that time we're going to, if they reject that, throw this into the hopper to see if it'll fall out.

COMMISSIONER FITZSIMONS: Ned.

COMMISSIONER HOLMES: I'm going to shift gears a little bit. Is there some perception that the white-wings are actually moving mourning doves out of that area?

MR. MORRISON: Not so much that perception. I think that you do see an increase of mourning dove in that area. And part of the reason —

COMMISSIONER HOLMES: Mourning dove in the area.

MR. MORRISON: I'm sorry. Yes, sir. That area is — when you look at harvest predominantly it is white-wings. And as you start shifting further to the east you start seeing the white-wing, wacky [phonetic], mourning dove picking up.

So that's part of the concern that the Service is expressing. They're trying to focus in. They agree that the white-wing harvest can go up. They don't have any problems with that. But they're concerned where do we draw that line so, that we don't move it too far and see an increase in mourning dove and not an increase in the white-wing.

So that's the key issue here, that we're trying to focus on white-wings, because that is a resource that can't sustain an increase in harvest.

MR. GEORGE: We do see in cities where white-wing numbers increase, mourning dove numbers often go down. But that's generally confined to that nesting area in the city where there's big concentrations and also maybe in feeding areas where there's intense feeding.

Mourning doves are kind of loners, and they just don't like a crowd. So they'll just feed elsewhere.

COMMISSIONER FITZSIMONS: Any other questions for Dave and Ron?

(No response.)

COMMISSIONER FITZSIMONS: Well, good luck in getting this done. It will make a big difference.

MR. MORRISON: Thank you.

COMMISSIONER FITZSIMONS: Thanks, gentlemen. Item two is the briefing item. Thank you for your presentation. No action required there.

Next is item number three, Chapter 58, oysters and shrimp review. Permission to publish, Jerry Cooke. Jerry?

MR. COOKE: Mr. Chairman, Commissioners. My name is Jerry Cooke. I'll be presenting this item to you. Chapter 2001 of the Government Code requires that all state agencies periodically review all of their rules, no less frequently than four years.

Chapter 58 is up for review, but only subchapters B, C and D. In 2003 and 2004 we extensively overhauled some of the oyster rules, and we published a review at that time. So we'll only be doing shrimp, crab and finfish at this time.

So what we're asking is your permission to publish the notice of review. We'll probably be coming back to you in August if there is any rule changes that result from that. For the benefit of our new commissioner, the purpose of the review is to be sure that the reasons for the rules that are in place still exist.

Our Agency tends to go a little bit beyond that and make sure that the existing rules also are enforceable and still addresses the resource concerns in an adequate way. That will be the purpose of our review. If you have any questions I'll be happy to answer them at this time.

COMMISSIONER FITZSIMONS: Thank you, Jerry. We kind of lost our oyster man here with Commissioner Watson. So anybody want to try and pick up that and ask the tough oyster questions?

Robert, you're not going to pick up the oyster? All right. Thanks.

No further questions or discussion, authorize staff to publish this item in the Texas Register for required public comment period.

MR. COOKE: Thank you, sir.

COMMISSIONER FITZSIMONS: Thank you, Jerry.

Next up item four, proposed 2005-2006 oyster fishery proclamation — permission to publish. Robin.

MR. RIECHERS: I'm also going to be joined by Mr. Bill Robinson with law enforcement today. Mr. Chairman, Commissioners. For the record my name is Robin Riechers. I'm Science and Policy Director of Coastal Fisheries.

I'll let you introduce yourself.

MR. ROBINSON: Bill Robinson, Chief of Fisheries Enforcement.

MR. RIECHERS: Before you today we're requesting permission to publish proposed changes to the oyster fishery proclamation. Giving you a brief background, just as Jerry Cooke just indicated, it's Chapter 58, subchapter A.

And within that context or within that subchapter it contains both the rules regarding the public oyster refishery and the private oyster lease program. Today the rules are really dealing with the public oyster refishery.

Kind of as a side note, us bringing this to you was contingent upon passage of Senate Bill 272, which actually caps the number of oyster fishery participants as we move forward in time.

And these rules are — the benefits derived from the rules that we're proposing before you today were dependent on getting that deal in place. So that's why we're here today and proposing these. I'd like to take just a brief moment to kind of give you a quick background into oyster fishery in Texas and kind of bring you up to date on that.

This body, the Commission, did pass in 1988 an Oyster Fishery Management Plan, which basically provides the guidance for the Department and the fisheries in promulgating rules and how we go about our business in dealing with the oyster fishery.

In addition to that an Oyster Advisory Committee was created at that time. And these rules and our work on Senate Bill 272 were basically brought to you with advice and consent and in fact support from the Oyster Advisory Committee.

The oyster fishery in Texas lands about 4.7 million pounds of product each year. It's valued at about $11 million. And we look at the participation in that — there's about 325 boats licensed annually to participate in that fishery.

According to the Texas Department of Health there's 53 certified dealers upon the Texas coast. In addition to that, that lease program that I mentioned earlier, there's 43 leaseholders, separate leases, that also contribute to that program. Those leaseholders also own vessels typically, and they're included in that 325 figure.

We look at the public reef area — how much acreage there is to actually harvest product from. There's about 20,843 acres of total reef area available for harvest. What we call open reef areas — they're open for public harvest without any sort of transplant, we have about 18,000 acres of open reef area.

There's about 2,600, almost 2,700 acres of closed area, closed by the Texas Department of Health. And of course that's what supports the oyster lease program, where those oysters are moved from those closed areas to those leases, allowed to depurate for a period of time or cleanse themselves, and then they're harvested for product and then sold in the market.

Proposed rule changes before you today are basically to define a sack of oysters. Currently our definition — we use barrels as the definition. And we're going to change that to sacks of oysters. And then we're also going to reduce the sack limit.

Proposed rule change will basically create a volume of oysters that's equal to 110 pounds, and this includes the sack. And this is work done by Bill and his crew in helping determine how this measurement will work and how best to go about it.

Proposed rule changes then reduces what would equivalent — it's 50 barrels, but it equates to about 150 sacks, and we're going to reduce that to 90 sacks per boat per day. And then we also have to convert unculled tolerance, which is the amount of product they can have on board at any one time that has not been culled.

We're just converting that from two barrels and now equating that to six sacks as well. The purpose behind our rule changes here are basically threefold. First of all one is it will make it easier on industry, since they already measure things in sacks, and that's how they basically package these oysters.

It also creates consistency with Texas Department of Health rules where they've defined sack in their code already, because there's actually a sack tax that is charged to the oyster fisherman, that goes to the Texas Department of Health. It will just create consistency in that respect.

And then lastly the idea behind the Senate Bill 272 in combination with this is basically to reduce the harvest of product early in the season, when they can obtain some fairly large amounts of product, spread that out over a longer period of time, so that when all that product hits the market, there's not the decrease in price that we see now.

We hope that will create some economic stability with that. Additionally Bill would like to speak to some of the law enforcement issues regarding that.

MR. ROBINSON: The reason we went to the sack limit was to make it more consistent in the industry, number one. We also have found a correlation to a sack of small, undersized oysters. Kind of indicates that they weigh heavier, because there's more density in the sack.

So we haven=t finished that study yet but we're working on it, and we feel like that if the warden takes a sample of 5 percent of the weight, and they're all overweight, then probably there's a good chance that all the sacks contained undersized oysters.

Just in this last season we filed 121 undersized oyster cases. They were really scraping for oysters down there. And when they can't get anything but the small, undersized then they tend to get over into a closed area, because the fishing is a whole lot easier over there, and they can get a load of legal-sized oysters quicker, so it all relates to the same.

And also the buyers encourage the fisherman to bring in sacks that weigh typically, some of them, 125 to 135 pounds, because they want as much weight as they can get in there. So it's good for the fishermen by saying a sack is 110 pounds, because that takes the pressure off of them for the dealer to require heavier sacks.

Every four sacks they sell, they actually lose one sack by turning in those heavier sacks. So it benefits the fishermen also, and that's the reason we're going to this.

MR. RIECHERS: We'd be happy to answer any questions.

COMMISSIONER FITZSIMONS: Robin, you mentioned Senate Bill on capping. Explain that a little bit.

MR. RIECHERS: Senate Bill 272 basically is we move forward into the next license year. Those people would have had to — anyone who can purchase a license in next license year would have had to purchase a license in this current year.

So basically it creates a limited entry or a moratorium on the number of licenses that will be issued from this point forward.

COMMISSIONER FITZSIMONS: All right. So if you take the first step in that quota or cap, are we taking the second step which is to allow the trading, like we do with transferable quotas in fisheries and cap and trade and pollution — the same idea?

MR. RIECHERS: That's correct. Certainly. Once we have the cap those other options become available as far as how we could combine those, whether we could tie a quota to that and those kinds of things. It basically closes the system now to those participants.

And that certainly allows a lot more flexibility with the management we consider from that point on.

COMMISSIONER FITZSIMONS: What I'm concerned about is that we don't close it to the ability of those who are better at it to succeed, and those that aren't can sell their quota or their cap to others.

MR. RIECHERS: I apologize. I didn't understand your question. No. Those licenses are fully transferable as we capped them. So certainly people who are better at the business and need to go ahead and obtain more licenses to obtain more product will have that available to them.

COMMISSIONER FITZSIMONS: Right. So it works like individual transferable quota system in offshore fisheries.

MR. RIECHERS: That's correct.

COMMISSIONER FITZSIMONS: Okay. That's my position. Is there some agreement to that, that we want to allow those industries to be dynamic within themselves and trade?

Robert, does that make sense to you?

COMMISSIONER RAMOS: Do we think that this is going to have an impact on the resource itself and the harvest by spreading it out and maybe in the long run improve the fishery?

MR. RIECHERS: Certainly our justifications for doing this at this time are more social and economic in consideration. But certainly that long-term and — as Bill mentioned — harvesting of undersized oysters for a lengthy period of time of really scraping those reefs as the season wears on, we think there can be some biological benefits.

It's more subtle than the economic and social reasons at this time. But we think there may be some additional some benefits as well biologically through time.

COMMISSIONER FITZSIMONS: Ned.

COMMISSIONER HOLMES: Does the bill actually provide for transfers of the licenses, because I thought I heard you say that would be something that would develop over time?

MR. RIECHERS: No. The bill itself does not, but transfers are already allowed in our code. So basically the bill's now setting the cap, but the transfer was already in there.

COMMISSIONER FITZSIMONS: We did cap and trade backwards. We did trade first, and then we capped it. Thank you. As long as you get it at the end of the day.

COMMISSIONER HOLMES: One other question. Do we feel like we have effective policing of the closed areas?

MR. RIECHERS: I'll let Bill answer that.

COMMISSIONER HOLMES: Because the reference to — the tendency of some of the fishermen to go into the closed areas to obtain larger product.

MR. ROBINSON: Yes, sir. We just conducted a Federal Drug Administration annual inspection, where they sent an agent down here, and we spent a week down on the coast overseeing our patrol efforts. And we're required to visit those bays at least four times a month.

And we're exceeding that in our enforcement sometimes as much as 15 to 20 times per month, going into those specific bays where we harvest oysters in our patrol efforts. And we have increased our efforts. Certainly when they start bringing in all these small oysters then we adjust our patrol and work those closed areas a whole lot closer, because they will get over into them, because the fishing effort's easier.

But I think — and according to our inspection — we passed the inspection with flying colors, and the federal government seems to think that we're doing good to control the health issues in the harvest of oysters.

MR. RIECHERS: Just to add to that — the industry's certainly aware that if they're not approved by FDA, basically our oyster lease program can be shut down. So they certainly understand that and somewhat help self-police in that respect, probably not as good as they should, but certainly — like I said, they're aware that that's a big issue and if those oysters get into the market channel, we have real problems.

COMMISSIONER FITZSIMONS: Any other questions? Any of the Commissioners?

(No response.)

COMMISSIONER FITZSIMONS: No further questions or discussions, authorize staff to publish this item in the Texas Register with a required public comment period. Thank you, gentlemen.

MR. RIECHERS: Thank you.

COMMISSIONER FITZSIMONS: Next item, five, state park operational rule. Walt Dabney.

MR. DABNEY: Good morning, Chairman, Commissioners. Welcome, Commissioner Friedkin. Good to see you. I'm Walt Dabney, State Park Director. And I'm here to talk about something a little easier than oysters and doves. Pretty simple and straightforward.

We've got a problem in a number of our parks which are located in rural areas, with folks that are using the park dumpsters to take care of all their own household garbage in the area or hauling construction debris, yard clippings, farm waste and that kind of thing.

I guess the positive thing is some of them buy an annual pass. But we're losing ground and money on that proposition.

COMMISSIONER FITZSIMONS: It's cheaper then the fee to go to the dump.

MR. DABNEY: By a long shot, and we're handy. So what we're proposing to do is promulgate a regulation that would prohibit you coming and using our dumpster, except for waste or garbage that's generated in the park or what you would normally accumulate in your car — which can be massive amounts for some people — on the way to the park visit.

It's pretty straightforward, and we'd like your permission to publish this and hopefully implement this regulation.

COMMISSIONER FITZSIMONS: What will the fine be? Above the cost of the permit to go to the dump.

COMMISSIONER RAMOS: Is it a Class C misdemeanor?

MR. MACDONALD: Class A misdemeanor. Class C, I'm sorry.

COMMISSIONER RAMOS: Class C.

COMMISSIONER FITZSIMONS: Counselor, what's the maximum fine?

Robert, do you know?

MR. COOK: I think it's maximum of $500.

COMMISSIONER FITZSIMONS: $500?

MR. DABNEY: Maximum is $500.

COMMISSIONER FITZSIMONS: It's still cheaper to go to the dump.

MR. DABNEY: And that's all we have.

COMMISSIONER FITZSIMONS: I'm glad you're taking care of it.

Any questions for Walt?

MR. DABNEY: I know trash in the parks is one of your pet peeves.

COMMISSIONER FITZSIMONS: Yes, it is. Any other questions?

(No response.)

COMMISSIONER FITZSIMONS: I authorize staff to publish this item in the Texas Register with the required public comment period.

COMMISSIONER HENRY: Walt, Mr. Chairman.

MR. DABNEY: Yes, sir.

COMMISSIONER HENRY: Before you go do we have — I have a concern with the signage in the parks. I've mentioned this to you some time ago. I drove out to Lake Houston State Park for example one day last week, and just missed it. I went by before I could — the sign was back in there.

Do we have signs that say, now, that they are to dump in there or asking people not to? When this passes, we will put up signs.

MR. DABNEY: Yes, sir, we will. And to answer your question we probably do in some places, and most we probably do not. We talk about not littering, but we don't really talk about not dumping your household garbage in our containers.

This is a little bit new. Littering has been a problem for a long time. It's a different animal than this, obviously. But as costs to dump your household garbage has gone up, we've become a cheap alternative. We will sign it. We will even sign the dumpster, I'm sure.

MR. COOK: We have the same issue, same problem on almost all of our, what people consider, just out in the country, out of sight — for example, particularly, I'm thinking like our white-wing dove sites in the lower Rio Grande Valley, where we've got 20-something different sites scattered over a 50-mile, 100-mile stretch of country.

Lots of problems. Lots of refrigerators, old tires and such.

COMMISSIONER FITZSIMONS: Econ 101. It's just got to be more expensive to do the wrong thing than do the right thing.

COMMISSIONER HOLMES: You've got to catch them.

COMMISSIONER RAMOS: Walt, I was just sitting here thinking about this. Wouldn't it be easier from a law enforcement standpoint to prohibit the taking of trash onto a state park.

For example, if I had a bunch of trash — it seems to me that if we're trying to keep trash that's not generated within the park, that you're having to bring it in and you're having to pass through a front gate, it would seem to me that if I've got 18 tires in the back — it may be easier from an enforcement standpoint to not only do that but to say that it's illegal to take trash onto the park.

If they can't take trash onto the park, then obviously if it doesn=t get in it's not dumped there. Just a thought. As compared to — because then you get into the issue was it generated within the park or not. It might be easier to enforce if you've got trash.

MR. DABNEY: We'd be turning away some people just because that's what their car looks like. That's just how they travel.

COMMISSIONER RAMOS: I'm just thinking from a law enforcement standpoint it may be easier to enforce and it may convey the message, hey, guys, this is not a dumping ground. Just a thought.

MR. DABNEY: We can certainly look at that. The reality is when you actually pull it out of your car and put it in our dumpsters when you —

COMMISSIONER RAMOS: But you could have the right to open your trunk, and if it's full of trash you can say, well, you can come in here, but the trash has got to stay out.

COMMISSIONER FITZSIMONS: You're chairman of the dumpster subcommittee. Dan's learning about the weightier issues of conservation.

MR. DABNEY: It gets down to basics for us a lot of times.

COMMISSIONER FITZSIMONS: Walt, thank you. Move forward on that one. Thank you.

I authorize staff to publish this item in the Texas Register for the required public comment period. Next up, Larry McKinney, Nine-mile Hole conservation regulation.

MR. McKINNEY: Mr. Chairman, members, I'm Larry McKinney, Director of Coastal Fisheries. The item up today — just give you a brief history for our new commissioner. The Department has the ability to establish scientific areas for the purposes of protection of flora and fauna and doing research.

And we have done that on several occasions. And this particular one — we set this up in 2000 with a Sunset period on. Basically after five years it would Sunset. The idea was to do some research on seagrass and fishing pressures in seagrass areas.

Unfortunately for us we lost funding through the legislative process and had to back off, and we could not do the research we had planned there, besides which the logistics were pretty difficult in this area. The rule is set to expire on June 30 of this year.

Just to give you an idea of where the Nine-Mile Hole State Scientific Area is, south of Baffin in the land cut area there. The proposal is up before you today for a couple reasons: one, that there is a group of folks that are very interested in maintaining that State Scientific Area.

It's an area in which there's no motorized props allowed. And they have come to us early on when we announced that we were going to let it Sunset, that they wanted to look at possibility of coming up with a research and continuing that State Scientific Area. So we wanted to allow them the time to make those proposals.

In addition this group had some bills entered on the House and Senate side to set this area aside. And legislation of those bills have not come out of the Legislature and will not. At this time we've not received any research proposals from those groups.

So our action would be to allow that area to Sunset. But we did want to make sure there's no action required by the Commission. But because there was interest from the Legislature and others, we wanted to provide those folks the opportunity to make proposals if they would, but they have not.

So at this time the State Scientific Area would cease June 30. With that I'd be glad to answer any questions.

COMMISSIONER FITZSIMONS: Larry, thank you.

We originally designated — the purpose was to do scientific research. The money wasn't available, so it hasn't been done in this past period. And we're at the point where if we were to not let it Sunset, we would once again be closing it without doing the research.

MR. McKINNEY: That's correct, sir.

COMMISSIONER FITZSIMONS: All right.

COMMISSIONER BROWN: Larry, too, when they do get under that, if and when they actually do come up with some money to do that. But we really need to look at the whole nine areas and what's defined as areas that you could run, because I think that whole thing needs to be looked at.

There's a lot of issues out there about not knowing where you can run, where you cannot run. There's some safety issues out there, because you can get in there and you can have a problem and not be able to get out. Anyway give it a very thorough look.

MR. McKINNEY: I think those are good points. So there are some things we did learn from that. And so as we look at these things in the future, we'll take those things into account. Those are good points. Thank you, Commissioner.

COMMISSIONER FITZSIMONS: Robert, is that going to be solved by Sunsetting this reg and opening Nine-Mile, pretty much?

COMMISSIONER BROWN: I think so. Absolutely.

COMMISSIONER FITZSIMONS: And the original impetus to close was not a resource issue driven by our file.

MR. McKINNEY: No, Commissioner. It was never a resource issue. It was strictly to take a look at how the differential fishing approaches.

COMMISSIONER FITZSIMONS: John.

COMMISSIONER PARKER: Will there still be areas of no-prop running in that area?

MR. McKINNEY: Not in Nine-Mile Hole. We're putting our efforts up into Aransas Bay and Redfish Bay area where there's tremendous amount of pressure. We have a group of folks we're working with there to see if we can accomplish that end in several ways.

COMMISSIONER PARKER: Nine-Mile will just be open.

MR. McKINNEY: Just be open, back to its normal status.

COMMISSIONER FITZSIMONS: Right. But we still have the non-prop zones up on the kayak trails and all that.

MR. McKINNEY: Voluntary types of things. But we're looking at that whole issue.

COMMISSIONER BROWN: It's minimal pressure down there. It's a long haul to get down there. And people that don't know that area don't go in there fishing because you can run aground easily. There's a lot of other areas I think we should look at as far as no-run zones that would be closer up, I assume around Packery Channel, some of those areas in there, that we probably ought to look at.

MR. McKINNEY: Yes, sir.

COMMISSIONER FITZSIMONS: Thank you, Larry.

MR. McKINNEY: Yes, sir.

COMMISSIONER FITZSIMONS: Next up, number seven, Chapter 65 white-tail deer permit rules. Clayton.

MR. WOLF: Mr. Chairman, members. For the record I'm Clayton Wolf. I'm the Big Game Program Director in the Wildlife Division. This morning I'm going to present to you numerous proposals dealing with white-tail deer permits. We're asking you to consider these for adoption.

The first proposal deals with what we have come to term, inconsequential TTT permits or releases. Of course a TTT is a permit to trap and transplant, in this case, deer. Our stocking policy requires that there be suitable natural habitat at the site of release.

However we do have a provision in our current rules that allows for releases, if these applications are going to not exceed a stocking density of one deer per 200 acres. Obviously the philosophy is that regardless of the existing stock and level at the site, one deer per 200 acres is of no consequence to the habitat.

Over a year ago we presented a similar proposal to this Commission. And as a result of some public comment we were directed to go back and study the issue of inconsequential releases in regard to the stocking policy. We studied it on numerous occasions with the White-tail Deer Advisory Committee.

Basically what we learned is although the theory sounds good, in practice the deer are not moved one at a time. They can be moved trailer loads at a time. And they will seek out the best habitat. So the deer may establish densities that are much higher, and in fact that could be of consequence to the habitat.

Therefore we're proposing to repeal inconsequential TTT releases. This was also a recommendation that came from our White-tail Deer Advisory Committee. We received to date 22 comments that agree with this proposal, seven that disagree. There's two with no opinion.

COMMISSIONER FITZSIMONS: Who are the people that call in and tell you they have no opinion?

MR. WOLF: All of these comments that I'm presenting to you are on the website. And so they have the option to vote or not vote. And that option is there for them to give no opinion. I guess they're just curious.

COMMISSIONER FITZSIMONS: They are curious.

MR. WOLF: The next proposal deals with CWD testing requirements for TTT deer. Briefly just to review, these are the rules here before you that currently exist. Someone must submit samples before they can move deer.

We're not proposing to change these existing rules at all. What we've tried to do is develop an incentive-based program to get folks to turn in an adequate number of samples and then reward folks that actually provide a statistically significant number of samples.

We've termed this Preferred TTT Trap Site Status. And as I briefed all of you in April, we're working with a group of veterinarians also to help us. We don't have any veterinarians on our Wildlife Division staff, so we rely on some outside practitioners and also Animal Health Commission vets to help us in making decisions dealing with animal disease and disease-risk management.

With the help of these individuals we developed these rules. Basically what we propose is that when someone submits 60 test results not detected from a site, that we would then qualify that site as a Preferred TTT Site.

Of course consistent with other disease-monitoring protocol, if deer are brought onto the site that come from non-preferred sites they would lose their status.

And this is consistent with any other kind of TB or CWD disease-monitoring program, where you know something about a herd and you bring in animals from an unknown herd. It'll have a negative impact on your status.

What do folks get for preferred status? First and foremost the annual sample results will not have to be presented prior to trapping. This can become a logistical problem for folks who get their samples during the hunting season, have to package them up and mail them to the lab.

Our turnaround time, especially at holiday times, can be many weeks. And of course we cannot approve the permit until we get the test results, and this can put some folks in a bind as far as time frames go.

We propose that once a property receives a Preferred Site status, that they would no longer have to test 10 percent, but would simply have to present the results on the equivalent of 3 percent of the animals that they move, with no less than one sample.

Of course like I said, they don't have to present that during the season but before the next annual cycle comes up. In order to maintain that status we would have to see those test results from that previous year.

We had 14 people to date that commented in favor of this, 12 that disagreed.

Generally speaking those people that did submit comments in the disagreed column actually were — the comments generally in nature were asking for more testing or not minimizing testing. I don't know if there was necessarily a full understanding of the proposal, but it was not against elevated testing.

We are also proposing an exemption for deer movements basically on adjacent tracts of land owned by the same person. What we're talking about is pasture-to-pasture transfers, where people that have ranches, high fences that may intersect those and they want to move animals on their own ranch and get them across these high fences.

This recommendation came from our White-tail Deer Advisory Committee. Because the scale of the movement is relatively small and impacts the same person that's moving the animals, we feel like this is a reasonable request and include it in our proposal package.

COMMISSIONER FITZSIMONS: As a practical matter they could do that anyway by opening the gate.

MR. WOLF: That's correct.

COMMISSIONER RAMOS: But is that only for high fenced areas?

MR. WOLF: No, sir. It'll be any tract of land that is owned by the same individuals and contiguous.

COMMISSIONER RAMOS: Contiguous.

MR. WOLF: Yes, sir. As far as public comments go to date we have 22 people that agreed, and eight that disagreed. We're also proposing a review process for TTT permit denials. You'll recall that in April this Commission adopted a process for MLDPs that was consistent with ADCPs.

Basically we're trying to develop an identical process for all of our deer permit denials. Basically if someone is denied a permit they have a chance to make a request to our senior Wildlife Division managers, and we would review that decision and make sure that it was appropriate. No public comment on that particular proposal.

We have a couple of definition changes that we're proposing. One is a definition for the wildlife stocking plan for trap sites. It may seem a little bit strange that we'd have a stocking plan for a place where we're taking animals from. But basically the statutes require separate stocking plans for trap sites and release sites.

Our regulations clearly define wildlife management plans written by a biologist to serve in the capacity of the stocking plan for the release site. Functionally we have been using the application materials as a stocking plan for the trap site.

And we'd basically like to clarify that in regulation and show that we have a stocking plan to meet the statutory requirements. And we would want to clarify the permit year within the TTT proclamation is defined as September 1 through August 31. We received no public comment on those proposals.

We have a couple of proposals that deal with notifications in the trapping and transporting — or trapping and processing programs. In '78 the Texas Legislature adopted some laws that allowed our Agency to develop rules for people to trap and process animals instead of moving them to another location alive.

This has become somewhat popular in our urban areas. It's become an effective way to get deer numbers down. And as some of our trappers are starting to utilize these programs, they have noticed that the rules need a little bit of tweaking to make sure that we have an efficient operation that helps communities.

One of those deals with notification to law enforcement. Right now the permittee must notify the Department not less than 24 hours, not more than 48 prior to trapping.

In these urban areas they can have all their gear on site, net set up, et cetera and not plan on trapping the following day, because the forecast may say there's going to be bad weather, and then the weather clears off and they miss a day, because they have to notify them 24 hours.

We ran this past our Law Enforcement Division. And we're proposing that we reduce the notification time period on the front end to 12 hours to allow for this. We had 15 individuals agree, 15 disagree. However when I looked at the disagree comments, there were only two individuals that submitted any comments, and they really weren't constructive and spoke to the rules.

We have a proposal dealing with TTP transport deadline. When a permittee starts trapping they have to transport the animals within 18 hours after trapping to the processing facility.

The intent is to include an afternoon and morning session, so that if the weather conditions are right, they can trap in the evening, put the deer in a trailer, trap in the morning, add deer to it and go to the processing facility for an efficient operation.

We've talked to our trappers, and that 18-hour time frame is just a little bit tight. So we're requesting to extend that to 20 hours, just to ensure that we have a full afternoon and morning session of trapping. We had 18 comments agreeing with this proposal, and eight that disagreed.

We have one proposal dealing with our scientific breeder proclamation. Currently scientific breeders can acquire deer from two sources. They can get deer from other scientific breeders in Texas, or they can acquire deer from sources outside of Texas as long as those animals are legally held outside the state and they meet Animal Health Commission entry requirements.

In a recent White-tail Deer Advisory Committee meeting Texas Deer Association presented a position statement calling for the closure of the borders to the importation of all CWD-susceptible species, which includes white-tail mule deer, blacktail and elk.

The White-tail Deer Advisory Committee endorsed this position statement. A discussion ensued about what the Agency, Parks and Wildlife could do on our end. And the recommendation that came forth was to effectively do what we could, propose what we could do to close the borders by rule, even though there were other things in the process at the Capitol.

As a result of that and in agreement with that idea staff prepared the proposal we are recommending that scientific breeders shall be the only source for deer obtained under these rules and statutes. So basically if you want to obtain deer for release, for propagation, whatever purpose, a scientific breeder would obtain deer. You can only get it from Texas sources.

COMMISSIONER BROWN: How many scientific breeders do we have in Texas?

MR. WOLF: Right now we have approximately 800. It's a fairly rapidly growing industry, if you will.

COMMISSIONER FITZSIMONS: And that's up from just several hundred ten years ago and maybe less.

MR. WOLF: Yes, sir. Probably less than 10 years ago.

COMMISSIONER FITZSIMONS: And the number of deer held?

MR. WOLF: I'm told right now probably between 25-, 30,000, somewhere on that order. A little over a year ago there was around 20,000. So it's growing rapidly also. We had 39 comments in agreement with this proposal, and six that disagreed.

We have a few proposals dealing with deer management permits. Of course a deer management permit allows a permittee that has a high fence ranch, completely enclosed by high fence, to trap wild deer, temporarily detain them in a breeding enclosure — one buck, no more than 20 does and for natural breeding purposes only — and then release those animals.

We briefed our White-tail Deer Advisory Committee on all of our deer management program. We were wanting to make them aware of the rules, and also we were seeking some guidance and some recommendations from the Advisory Committee on a few questions we had.

First off no deer may be released from a DMP enclosure until April 1. We had a request from the Advisory Committee to change this. And we're proposing that no permit shall be issued for trapping on a property if DMP deer have been released in the same permit year.

Basically on top the current rule was done, I'm told, to keep someone from trapping deer, putting them into a breeding enclosure and then releasing them during the TTT season for immediate capture and movement off the ranch. Our TTT season ends March 31.

And so by not allowing anyone to release deer before April 1, they couldn't capture these bred does and move them off the ranch. The proposal would effectively achieve the same thing. So that if you're not going to be involved in a TTT operation, you could open the gates as soon as the does were bred.

Or if you were going to be involved in a TTT operation as long as you finished your operation prior to releasing animals, you could do that. But still bred does, animals that were held and bred, could not be trapped that year and moved off the property, if our proposal were adopted.

COMMISSIONER RAMOS: Excuse me.

MR. WOLF: Yes, sir.

COMMISSIONER RAMOS: On the front end of that are we providing that you cannot release any earlier than January 1? In other words can you release as early as you want? Do you see what I'm saying?

MR. WOLF: If this was adopted, yes, sir, that would be the case.

COMMISSIONER RAMOS: So technically you could trap and release in the middle of the deer season.

MR. WOLF: Yes, sir. That's true.

COMMISSIONER RAMOS: As compared to trapping and only releasing after the deer season ended.

MR. WOLF: Right now under the current rules if you trap deer and put them in your pens, you cannot release them until April 1.

COMMISSIONER RAMOS: Right. Which is post-deer season.

MR. WOLF: That's correct.

COMMISSIONER RAMOS: With this proposal you could theoretically release during the deer season.

MR. WOLF: Yes, sir. That's correct.

COMMISSIONER RAMOS: So you could shoot that stud buck, as you might say, that year.

MR. WOLF: I suppose if someone would want to do that, they could do that.

COMMISSIONER RAMOS: You could release — breed them to some does, release and shoot them.

MR. WOLF: If this was adopted that would not disallow that.

COMMISSIONER PARKER: Do you think that's a good idea?

MR. WOLF: To hold a buck and then release it? Well, personally, no, sir. I don't necessarily know that that would be the intent. The purpose of the program is to capture a buck with desirable antler characteristics and have it breed 20 animals, because our studies show that on the average a buck probably only breeds one or two animals.

So you don't have these prolific breeders out there, generally speaking. And if we assume that folks are in the program because they want to propagate those genetics, it probably would be counterproductive for them to shoot that animal. But I can't speak to everybody's motives.

COMMISSIONER RAMOS: And not only that, but as to those does that have been bred for specific reasons, it seems to me that none of those animals should be released any earlier than the end of the deer season. That's just my thought.

MR. WOLF: Right. And I suppose the same concept would apply. These animals are marked. And typically the people that I deal with, they want to know which animals those are, so that they would not be harvested — at least those, because they're trying to get those animals bred by a particular buck, and they want that doe to have a fawn.

So I would say almost without exception if this were allowed during the hunting season, these animals would be marked, and they would be off-limits, if you will, by the permittee or whatever, because they want to see that doe have a fawn. Or there would be no purpose —

MR. COOK: 99.9 percent of these folks are not going to release those deer until hunting's over with.

COMMISSIONER HOLMES: If they go to the trouble to be in the program and work through the process they — the trouble and expense of this. Their — [inaudible]

COMMISSIONER FITZSIMONS: And no doubt there are easier ways to do this.

MR. WOLF: Okay. We had 25 people agree with this proposal, four that disagreed. The release of DMP deer — currently all DMP deer that are detained in a pen shall be released no later than ten months following capture, unless it's otherwise approved by the Department and a deer management plan.

We have several rules in our DMP rules that allow for this discretion in the plan. The fact of the matter is we were getting requests from individuals to have deer detained for extended periods. The statutes indicate that the detention shall be for a temporary time frame.

And so we came to the Advisory Committee to seek a little bit of guidance on trying to define what temporary detention was. In fact we were instructed at the Advisory Committee that people that were listening to the debates of the Legislature when these statutes were adopted, I guess, wanted this conducted in the strictest sense, which was have them bred and released.

Therefore we are proposing that all DMP deer shall released from captivity no later than August 31. And in addition to that all supplemental food and water would be removed from the breeding enclosure for 60 days.

And this basically is just encourage those animals to leave it before they close the gates, because there was some talk that you could keep your food and water in there, open the gate for 60 days and then close them, and then you would in effect have a captive herd. And that was not the intent. We received no public comment on that proposal.

Currently each deer — this is each captured deer — should be marked with a stripe of yellow acrylic, water-based paint or as otherwise prescribed by the Department. We learned early on that the paint doesn=t work. So every deer out there that's marked is marked by different means, but we still have this rule in our books.

And our plans always prescribe typically ear-tagging. What we would do just to clarify things is that each deer shall be marked with a durable ear tag clearly visible from a distance of 50 feet. We received no comment on that proposal.

COMMISSIONER RAMOS: Could I interject a question? Have we ever considered having a, you might say, Texas Parks and Wildlife issue ear tag that would meet certain standards, that would for example identify a particular doe as being a DMP doe for the year 2004-2005, to where we would have a uniform tagging system and we would furnish those tags? Just a thought.

MR. WOLF: I'm not aware of any discussions like that. The only marking that we require that's somewhat official is on our TTT deer because of disease-monitoring purposes.

We require that their permit number be tattooed in the ear, so that if under some unfortunate circumstance we find a deer with a disease, and we find out it was a TTT deer, we can go back to the trap site and that tattoo will tell us where that deer came from.

COMMISSIONER RAMOS: I was thinking more in terms of a plastic ear tag that would be uniform to where as we go into the future we could say, these 32 does were part of a DMP deer program for 2003, and maybe even have a year that would identify them.

The only reason I say that is then you have a benchmark that you can use for "scientific purposes." If in fact we're trying to identify superior genetics it'll be a more uniform way of identifying a deer, to where you couldn't say, well, I ear-tagged it with this type of a tag.

And we'll have the benefit of a particular tag that we think will satisfy our requirements, as compared to another tag that may not be as adequate or something. Do you see what I'm saying?

COMMISSIONER PARKER: That's a control issue.

COMMISSIONER RAMOS: More of a control issue. And I think through experience you recognize that certain tags are more likely to be permanent in an animal than others. You know, the larger the tag, the greater the chance that the deer might tear it out — issues of that type.

MR. WOLF: Certainly we'll study that. Well, I know obviously there are law enforcement issues in that. The original intent was to identify these animals and make sure the right animals were in there. Some of these other ideas are kind of new to me. And we'll definitely take those back and study them, and if we can think of any options, run that past our Advisory Committee also.

COMMISSIONER FITZSIMONS: How many deer management permits are there, Clayton?

MR. WOLF: My recollection is approximately 45 to 50 this last year. We made a big jump this last year. Growth the first few years was single digits, starting in 10-15. And this last year we had a pretty significant increase.

In fact it's probably why we came to the Advisory Committee to bump this off of them, because we were starting to get a lot more involvement and a lot more questions about different activities. And our side boards were pretty wide at that point in what we could do and allow.

And some of our staff really weren't certain what might be deemed appropriate. And we received no public comment on the ear-tagging proposal. Currently TTT deer may be imported onto a DMP property, but not directly into a DMP breeding enclosure.

This issue was brought to the White-tail Deer Advisory Committee, I speculate, because some individuals that would want to bring these deer in, would want to use those for brood stock in DMP pens.

Theoretically they could bring them onto the property, but then they would have to release them and recapture them and put them in the DMP pen and handle the animals twice, because our rules do not allow them to come straight into that pen.

We would propose as a result that TTT deer may be imported into a DMP pen directly, as long as the ranch meets the requirements of the Department stocking policy at the time of a release.

COMMISSIONER FITZSIMONS: And that's a habitat-based stock.

MR. WOLF: Yes, sir. And obviously the pen is probably not going to qualify. But since — especially if these rules were adopted to require release by August 31, we know the animals would be gone. And we would gauge or judge whether we approve this based on the total ranch habitat they're going to be released into.

We had 34 people that agreed with this, 92 that disagreed. Generally speaking on the comments — there were numerous comments submitted on disagreeing. It wasn't necessarily specific to the TTT deer and the DMP pen. Most of the comments were generally against the capture and detention of wild deer as a whole, the DMP program as a whole.

COMMISSIONER FITZSIMONS: Opposing the DMP program.

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: Not the scientific breeders.

MR. WOLF: Most of the comments generally speaking were in opposition to holding wild deer in detention and breeding them, regardless of whether you trapped them on the ranch or you trapped them on a different ranch.

And finally — well, not finally, I'm sorry. We still have a few more to go. We're getting close. We are also recommending an identical review process for DMP denials just as we did for the other permits. We received no public comment on that.

At our White-tail Deer Advisory Committee meeting several months back it was recommended that we add some teeth to our DMP rules to discourage unscrupulous activity. The proposal is that a person who's finally convicted or has received deferred adjudication for a violation relating to release, is prohibited from obtaining a DMP for three years after date of conviction.

And that of course is if they don't release them by August 31 or something specific. So this proposal deals specifically with violations pertaining to release of deer. We had 128 people that agreed with this, seven disagreed.

We have another proposal that we have that basically is an attempt to make things more consistent with a lot of our other deer permits for other violations. We propose that the Department reserves the right to refuse permit issuance to any person that's been finally convicted or received deferred adjudication for violation of Parks and Wildlife code as a whole within the three years immediately preceding an application.

And we have this language in many of our other permit programs, and it doesn=t currently exist in our DMP rules. And we had 126 individuals that agreed with this proposal to date, and five that disagreed. And finally at our meeting in April we published this proposal as a result of some comments we received from this Commission.

The proposal is that the Department may refuse to issue a permit to a person for prospective DMP property if the Department has reason to believe that the person is acting in behalf of or as a surrogate for another person who's unable to qualify for permit issuance because of conviction history.

Basically the question was asked, if we deny someone permit issuance could their wife or brother apply, basically use the same facility, name them as agent, and they conduct business as normal. And we said currently that, the best we could tell, is allowed by rules. So we published this proposal.

Now what we're requesting to do is withdraw this particular part from our proposal for adoption tomorrow. The thinking behind this is: number one, we have not bounced this off of our White-tail Deer Advisory Committee. And also to be honest with you, we're contemplating similar language for our other deer permits.

So what we would like to do is take this concept back to our White-tail Deer Advisory Committee and talk about it in the context of not only DMP violations, but scientific breeder, TTT, et cetera, and get their input, and then come back with a proposal that deals with all the permits as opposed to just DMPs.

As a matter of fact we did receive 128 comments that agreed with this, and four that disagreed. And I will take any questions now.

COMMISSIONER FITZSIMONS: Donato.

COMMISSIONER RAMOS: Clayton, going back to that last slide — can a non-person apply for a permit? In other words can an entity or limited partnership? Has to be a person?

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: The permittees are all individual. We would deny a corporate entity.

COMMISSIONER RAMOS: Has to be an individual.

MR. WOLF: That's right.

COMMISSIONER FITZSIMONS: On that last one I've got to say that we have the White-tail Deer Advisory Committee exactly for this reason, to review these issues and ask the ideas of 20-some-odd plus —

Dan, you served there — folks. It's a broad range, isn't it?

I've got to tell you, the position of the Chairman is clearly that we don't go around them. Otherwise we shouldn't ask them to spend their time working on these things if we're going to do that. So I agree with you that we should send that back to them.

And if they'd like to make it consistent with the other violation provisions, we'll consider their recommendations after they've looked at it.

John? You look like you wanted to say something.

(No response.)

COMMISSIONER RAMOS: I had one question. Going back to the Preferred TTT status.

MR. WOLF: Yes, sir.

COMMISSIONER RAMOS: You talked about testing 3 percent. I didn't understand — 3 percent of what?

MR. WOLF: Three percent of the animals that they move. Right now when they apply for a permit, they apply for a certain number that they plan to move. And they must provide the test results for 10 percent of that number they plan to move.

As we have this proposed, once we have a Preferred status and someone is deemed Preferred, then when the new permit year starts, they don't have to provide any test results up front. But when the trapping season is over with, based on the number of animals they actually moved, then they will have to submit to us test results on 3 percent of that number.

So if they moved 100 deer, then we need three samples or a minimum of one. And if we receive that, then they're going to be re-upped for the following season.

COMMISSIONER RAMOS: Okay. But those samples will be furnished prior to the trapping although the results may not have been received — I think is what you said.

MR. WOLF: Typically what is going to happen is they're going to get those during the hunting season and harvest those.

MR. COOK: The harvest of the initial sample.

COMMISSIONER RAMOS: The initial sample.

MR. WOLF: Now theoretically if they had a mortality during trapping, they could also get a sample there.

COMMISSIONER RAMOS: That's what's going to be my next question. Theoretically they could do it post-deer season to satisfy that requirement.

MR. WOLF: Yes, sir. Well, if I was one of those folks I wouldn't bet on that, because you don't want to lose animals. So you want to get your samples during hunting season. The problem that a lot of these folks run into is they run their doe hunts a little later in the year, and that's typically where they get their samples.

And that really puts them in a bind if they're going to do a December/January doe hunt and trapping season ends March 31. So the bottom line is they can be approved to line up their helicopter crews and trappers and get all that going, while they're also conducting their hunts and getting their samples.

They just don't have to submit those test results to us until the end of the year.

COMMISSIONER PARKER: Mr. Chairman.

COMMISSIONER FITZSIMONS: Yes, sir, John.

COMMISSIONER PARKER: This is with regard to this program. Most of this program, not all of it, is for private property. I would like to ask if we could get some clarification with the possibility for increased hunter opportunity using these programs that we have in place.

An example, public hunting areas. Not only our wildlife management areas but also National Forest areas, National grassland areas, where the public is invited to hunt. Now then I realize that a study would have to be made as to how many deer a particular place could handle, if they are bumping up to the spot on the graph that this particular area could not hold any additional deer coming in through one of these programs.

So could we have the White-tail Deer Advisory Committee look at the possibility of having a particular area this year hunted down, so that the numbers for the next year could reflect an area that would hold deer that are trapped from cities, from municipalities, from certain areas, with the idea of being able, instead of TTP, to take those deer to public hunting areas and offer more hunter opportunities in those areas.

I'm not saying that we can or can't. I'm just asking if the White-tail Deer Advisory Committee could take this subject up and ask our biologists what they thought about that in order to create more hunter opportunities in those areas.

MR. WOLF: In fact to some degree the White-tail Deer Advisory Committee has talked about this concept of trapping surplus deer, moving them to other places, and talked about private land, public land, wildlife management areas, anywhere to try to utilize those animals and increase some public hunting opportunity.

In fact recently within the last several months the guys in the Piney Woods pulled up their files on Sam Houston National Forest, because it's 160,000 acres of public land we have been issuing permits on and been trying to reduce those deer numbers.

Unfortunately, at least in that case, what they found was going from, I think in the initial years, issuing 600 antlerless deer permits to now 1,200 or 1,500, that you hit a point where harvest stays the same utilizing public hunters.

In other words you can issue a lot more paper, but there's apparently a point of diminishing return on success. And harvest hits a plateau. And I guess public hunters don't go anymore.

COMMISSIONER PARKER: Why is that?

MR. WOLF: To be honest with you, I don't know.

COMMISSIONER PARKER: Is it a public information problem?

MR. WOLF: Well, no. The folks are getting the permits. But we're not having a corresponding increase in the harvest. If I had to speculate, I would say that once a certain number of animals are shot — just like any rancher would have, once you get to a certain threshold it gets tough to kill more animals.

And typically speaking you're probably just about where you need to be at that point. On Sam Houston what they found is that even with these massive quantities of permit issuance — deer control is marginal already, unless we can figure out how to get more people to successfully kill more deer, successfully kill them.

COMMISSIONER PARKER: Could you ask them if they might investigate whether or not when you issue a permit to an individual going on to that public hunting area, instead of that individual shooting one deer, maybe he could shoot two or three?

MR. WOLF: That's a possibility.

COMMISSIONER PARKER: And then be able to take deer from other areas back into that area to —

MR. WOLF: In fact if I'm not mistaken, I know that in previous years we actually surveyed all of those participants on their harvest. And that's obviously how we determine what they kill. It's possible that we could even develop a questionnaire to ask them if they would harvest another deer, or even ask the unsuccessful hunters why did they not harvest a deer.

Did they not see one or did they not go or feel it's worth their time. But it is an issue we've been dealing with. Even regardless of the need to bring more animals in, just getting the existing numbers down is an issue for habitat protection.

MR. COOK: We deal with some of that, Mr. Parker, on some of our state parks. We have a difficult time getting that deer population down. You know, it comes a point in time in the hunting season where, I don't know, the deer just get so wild, or they get spooked up. It's difficult.

COMMISSIONER PARKER: Maybe you just increase the bag limits of the people who do respond to that.

MR. COOK: I understand. We've done some of that.

COMMISSIONER FITZSIMONS: Any other questions for Clayton?

Ned?

COMMISSIONER HOLMES: Let's go back to the scientific breeder restriction. If I understood, Clayton, what you said, we were going to restrict the importation of deer from out of state.

MR. WOLF: That's correct. Effectively that's what would occur.

COMMISSIONER HOLMES: And if I understood the survey there was a high level of agreement with that.

MR. WOLF: That's correct. I have the comments on that marked. We had six people — we had 39 people that agree. Generally speaking it's disease-related. And even whether it's this or other items, folks are concerned about the impact that CWD would have in Texas — really any disease, not necessarily the biological impacts, but just the perception and how it would impact hunting.

So most of the comments we received are basically, we've got enough deer in Texas. We can do with what we have here. We don't need them. So were not in the same circumstance as the Texas Animal Health Commission is, where their agency is more commerce-oriented.

COMMISSIONER HOLMES: Well, I was thinking actually about the commerce side of it. Are there other states that prohibit the importation of deer?

MR. WOLF: Yes, sir.

COMMISSIONER HOLMES: Has there been a reciprocal arrangement where if we disallow importation of deer, that other states would disallow our scientific breeders selling into their state?

MR. WOLF: I guess that potential exists. And typically that's a dialogue that occurs at Texas Animal Health Commission more frequently than here, because they deal with a lot more commerce. I don't know if I mentioned that there was a bill introduced this session to close the borders to all CWD-susceptible species.

Right now an agreement has been made with Mr. Kuempel who filed the legislation, talking to the Animal Health Commission and us to basically get the elk breeders — and the issue is elk; elk weren't being mandatorily monitored or tested.

Now they have agreed to step up and do something similar. So it's my understanding that this closure will not occur. Our entry requirements for all these animals will be the same. But since we have regulatory authority for mule deer and white-tail deer Animal Health Commission could issue an entry permit for white-tails.

But if our rules don't allow us to issue a purchase permit, then they're not going to be able to get in. At one of the Animal Health Commission meetings there was a group from Oklahoma that was — at several meetings — strongly petitioning the Animal Health Commission to loosen up the entry requirements into Texas.

When you talk to scientific breeders and the information I get, all the deer are coming into Texas. Texas is a big market for animals coming in. There's not a lot going out. The deer industry as a whole actually endorses this and doesn=t think it's going to impact their business.

Although there are a few out there that do some interstate deals shipping deer out. But mostly deer coming in.

MR. COOK: To answer your question, there has not been that discussion of some sort of reciprocal thing, but I notice as more and more states are finding CWD they are immediately and almost immediately — I saw New York did it just the other day — putting up a barrier, putting up — no more deer coming in of any kind.

COMMISSIONER FITZSIMONS: And that is — just to give you a little background — that was right before you came on the Commission, Ned. We did — it was referred to as a closure. What we actually did and all we really had the authority to do was with the Animal Health Commission's help, said you couldn't bring in a deer that didn't meet those requirements.

And there were no deer that met those requirements, because you really —

COMMISSIONER HOLMES: It was an effective closure.

MR. WOLF: We did have an emergency closure for a short period until the entry rules could be established.

COMMISSIONER FITZSIMONS: Right. And when the entry rules were established, they were essentially they were CWD-free or from a CWD program in another state. But it makes sense to me to — if deer breeders don't have a problem with what you're referring to — retaliatory closures as far as them selling in other states — then I think they're doing us a favor to support closure.

It sure makes it easier if we ever do find CWD to at least know at what date the last one came in.

MR. COOK: Clayton, on that topic what did we end up testing this year? What was our end-up test results this year on CWD?

MR. WOLF: I'm drawing a blank right now. Somewhere in the order of 2,400 if my memory serves me correct. We are three years' summary close to 9,000 samples — private sector and TPWD-collected. And the private sectors probably contributed about 8-9 percent of that.

Parks and Wildlife has done the lion's share on that. And we suspect that from the elk standpoint the Animal Health Commission is going to proceed with some new rules that require monitoring in the elk industry movement and testing.

So the number of elk samples that goes in should escalate over the next several years also.

COMMISSIONER FITZSIMONS: Thank you, Clayton. If I understand — just to wrap up here — every proposal, with the exception of the DMP violations which you're pulling from the agenda tomorrow, all reflect the consensus of the White-tail Deer Advisory Committee.

MR. WOLF: Just one of the DMP violations, because our other ones came from our Advisory Committee. And that's the subsection D which deals with the surrogates and someone acting on behalf of the permittee.

COMMISSIONER FITZSIMONS: Right. With the exception of that one that you are pulling out, everything else reflects the consensus of the Committee.

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: All right. Very well. Thank you. Any other questions?

(No response.)

COMMISSIONER FITZSIMONS: Hearing none I place the item on the Thursday Commission meeting agenda for public comment and action. Any other business to be before the Committee?

This would be a good time to introduce our friend, Dick Davis — are you out there somewhere — he will be as of June 1 the new Executive Director of our Texas Parks and Wildlife Foundation. Dick's got a long history in conservation and the outdoors. He's worked with the National Wildlife Foundation.

Dick, welcome.

MR. DAVIS: Thank you. Looking forward to it. I officially start next Wednesday. I'm going to stay in Dallas, and I'll be down here as often as I can get here or whenever you need me.

COMMISSIONER FITZSIMONS: Great to have you on board. Thanks, Dick.

MR. COOK: Mr. Chairman, just one other quick comment. I've had several questions. I think most of you've heard by now that our Executive Director, Andy Sansom, was in a car wreck Monday afternoon about 5:30. Just got a little more information a while ago. Car wreck near West Columbia, has a broken leg and apparently a fractured bone or so in his neck.

They think he's going to be fine. Lost an ear, so we're going to have to get him a new set of glasses. But we understand he's supposed to go have surgery today on that leg or some pins — leg and ankle. Pretty banged up, but we think he's going to be all right.

COMMISSIONER FITZSIMONS: Pray for Andy and his family. That's tragic. That completes the business of the Regulations Committee and on to Finance Committee.

(Whereupon, the meeting was adjourned at 10:18 a.m.)

CERTIFICATE

MEETING OF: Texas Parks and Wildlife Commission

Regulations Committee

LOCATION: Austin, Texas

DATE: May 25, 2005

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.

6/03/05

(Transcriber) (Date)

On the Record Reporting, Inc.

3307 Northland, Suite 315

Austin, Texas 78731


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