Texas Parks and Wildlife Commission

Regulations Committee Meeting

August 24, 2011

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

BE IT REMEMBERED, that heretofore on the 24th day of August 2011, 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:

P R O C E E D I N G S

COMMISSIONER HOLT:  Okay.  Regs.

COMMISSIONER FRIEDKIN:  Here we go.

COMMISSIONER HOLT:  Here we go.  Chairman Friedkin, the first order of business is the approval of the previous committee meetings from the May 25, 2011, meeting, which has already been distributed.  Is there a motion for approval?

COMMISSIONER HIXON:  So move.

COMMISSIONER DUGGINS:  Second.

COMMISSIONER HOLT:  Okay.

COMMISSIONER FRIEDKIN:  Commissioner Duggins.

COMMISSIONER HOLT:  You supposed to be doing this?

COMMISSIONER FRIEDKIN:  Whatever you want to do, do it.

COMMISSIONER HOLT:  No, I’m handing it over to you.  Sorry, I got ahead of myself.

COMMISSIONER FRIEDKIN:  So moved by Commissioner Hixon and second by Commissioner Duggins.  All in favor?

(A chorus of ayes.)

COMMISSIONER FRIEDKIN:  Any opposed?

(No response.)

COMMISSIONER FRIEDKIN:  Hearing none, motion carries.

Commission Item 1, update on Parks and Wildlife progress in implementing the Land and Water Resources Conservation and Recreation Plan.

Mr. Smith?

MR. SMITH:  Thank you, Mr. Chairman.  I don’t have any official reports on any of our land and water action items, but there are a couple of updates that I want to make sure that you all are aware of, a couple of key pieces of legislation that passed that certainly affect our business that we ought to know about.  But before I do that, just a couple of things.

One, since 2003 we’ve had an executive order in place that allows for the public who lawfully enter a state park or wildlife management area to be able to fish for free if they’re public waters that are wholly contained in those areas, and we’ve extended that for another year.  We think that’s a great recruitment tool.  And so I just wanted to make sure that you all were apprised of that.

Also, back in March you all gave us a conditional authorization to standardize the regulations for bass and crappie and catfish at Toledo Bend and in the Sabine River below Toledo Bend and at Caddo Lake.  We were trying to make them consistent with Louisiana to make it just easier for our anglers to understand within both states.  You all had authorized us to move ahead with those contingent on Louisiana passing those same regulations.  And so they have now done that, and so that’s a good thing.  And so those will go into ‑‑ I realize some of you are surprised, but we’re pleased.  Those were well negotiated and so happy those are in place.  They’ll go into effect the first of September.  So just wanted to give you a heads up on that.

A couple of pieces of legislation I want you to be aware of.  HB 1788, the creation of a new reptile and amphibian stamp.  This essentially reinstated the ability of, really, snake collectors to be able to lawfully collect snakes and amphibians on public roadway.  This legislation requires that they buy a stamp, it’s a $10 stamp that you can get at point of sale.  I think we sold ‑‑ David Sinclair said we sold six the first day and five the second day, so we’ve got 11 so far.  You know, there are some rules associated with it.  They’ve got to wear a reflective vest, 144 square inches on the front and back, they can’t collect off the roadway, they can’t use the vehicles, can’t spotlight from a vehicle, and it’s got to be off the paved shoulder.

So a new tool that’s out there and it doesn’t allow for any commercial collection, so, and it’s a non-lethal deal, so they’ve got to collect them, can’t sell them commercially, can’t shoot them on the side of the road.  We’ll likely see most of this out in West Texas, which is where most of this goes on, kind of Val Verde County west out to the Big Bend country.  So I wanted to make sure you all were apprised of that.

Senate Bill 498, our Wildlife Division is going to be coming back with some proposed rules on that in November, change the process for the TTP permits.  Clayton said on average, you know, we’ve had maybe 12 landowners a year that have had one of those, and another dozen homeowners associations.  Basically this new law will allow those who are qualified and are seeking those permits under the rules that you all established to bypass going to the county judge, which is what had to happen in the past, so it ought to make that process a little more efficient.  But Clayton and his team will come forward to you all here in November with some specific rules on that.

The last one I’ll mention, Chairman, Senate Bill 460, which is the proposed mule deer DMP legislation.  That bit of legislation afforded the Commission the opportunity to set up a new mule deer DMP program.  The effective date for the proposed rules to implement the bill is not until September 1, 2014.  Lots and lots of discussion on this program, recognizing the very strong inherent differences between mule deer and white-tail and the different habitat types that they occupy, different social structure, et cetera.

And so really before we can come back to you all with any kind of intelligent recommendations, we feel like we need to put together a task force of representative stakeholders on the issue.  And so working with our Wildlife Division we have appointed about a dozen or maybe 13 landowners, ranch managers, mule deer enthusiasts, deer breeders, veterinarians, biologists like Louis Harveson over at Sul Ross, to serve on that task force and help identify what are those kind of key areas that we need to understand better, everything from facilities size, cover requirements, how long you can potentially detain a deer, when they could be released, what are the likely mortality issues inside and outside those DMP pens.

So a fair amount of questions that we have from a scientific perspective that we need to research, and we expect that task force to work with our team to identify those research questions, then we can issue some scientific research permits to go look at these things, help us learn more and then come back with you all ‑‑ to you all with some specific ideas on that.  So I wanted to let you know that, the task force has been appointed and we’ll certainly gather them to meet here in the next month or so and start working on this.

Mr. Chairman, I think those are all the reports from me, and I’m happy to take any questions from anybody if any of you have any questions on any of those items.

COMMISSIONER FRIEDKIN:  Thanks, Carter.

Any questions?

COMMISSIONER DUGGINS:  Would it be possible for you ‑‑ or somebody to circulate a list of who that committee is?

MR. SMITH:  You bet.  You bet.  Yes, I’ve got that right here, and I’ll just make a copy of that.

COMMISSIONER DUGGINS:  No rush.

MR. SMITH:  Yes.  You bet.  I’ll get that to you all today.

COMMISSIONER FRIEDKIN:  Thank you.

MR. SMITH:  That’s it.  Thank you, Mr. Chairman.

COMMISSIONER FRIEDKIN:  Item 2, migratory game bird proclamation rules, early-season regulations update and 2011-12 late-season migratory regulations, recommended adoption of proposed changes.

Good morning, Kevin.

MR. KRAAI:  Good morning.

Good morning, Commissioners.  For the record my name is Kevin Kraai, Waterfowl Program Leader for the Wildlife Division.  And I’m here today to visit with you primarily about the late-season migratory game bird proposed season dates which we will be presenting to you again tomorrow with a recommendation for adoption.

But to begin with, I’d like to start off with a brief update on our early-season migratory bird regs, that being dove, teal, snipe, gallinules and woodcock.  Those season dates and bag limits have been submitted and approved by the U.S. Fish and Wildlife Service because of the calendar.  I believe in conjunction with Mr. Smith and the Chairman, those seasons have been approved and they are in print and ready to begin come September 1st.

Just also as an update, as a reminder, we did move forward with a recommendation to the U.S. Fish and Wildlife Service requesting a consistent opening day in the south zone, that being the third weekend of September, and that was not approved by the U.S. Fish and Wildlife Service.  So there were no changes from what was presented to the Commission in May.

COMMISSIONER HOLT:  So what does that mean?

MR. KRAAI:  It will be the ‑‑ it will not be the earlier opening date that we were asking for.  I believe it will open September 23rd.

COMMISSIONER HOLT:  The 23rd.

MR. KRAAI:  This year.  And then actually next year the calendar shifts and it will be early again.

COMMISSIONER HOLT:  What had it been the year before?  I’m just trying to remember.  It had been later.

MR. SMITH:  Wasn’t the year before on the 17th, Kevin?

MR. KRAAI:  Yes, sir.

MR. SMITH:  Yes.  And that was the earliest week it opened, it was ‑‑

COMMISSIONER HOLT:  Yes, no earlier ‑‑

COMMISSIONER FRIEDKIN:  Yes, that’s right.  Yes.  As Kevin said, we wanted, and would still like really some consistency.  You know, you have the two special white-wing seasons down in South Texas, we thought it made sense to open the south zone the third Friday of September.  You know, hunters can plan for it, there’d be a lot of continuity, we thought it would just be simple for our hunters to follow.

We think the biological impact of opening the season maybe a couple of days earlier essentially are going to be inconsequential with respect to concern about the impact on young birds, fledglings, and so forth.  And we had taken that to the Service and asked for that and they denied it.  So we’re going to work with the Service and continue to try to advance that.  We think it’s an important regulation change, that if we can, we’d like to see come to fruition.

COMMISSIONER FRIEDKIN:  And they denied it based on kind of their broader thoughts about it?

MR. SMITH:  Well, I think ‑‑

Kevin, do you want to comment?  I’m happy to, but if you want ‑‑

MR. KRAAI:  Go ahead.

COMMISSIONER HOLT:  Biological or ‑‑

MR. SMITH:  I think ‑‑

COMMISSIONER HOLT:   ‑‑ scientific or ‑‑

COMMISSIONER FRIEDKIN:  It wasn’t specific to –

MR. SMITH:  I think that their concern was that we didn’t have a good body of biological data to support our assertion that the biological impacts of that regulation change would be inconsequential.  Now to be fair, neither did they.  And so we could spend a lot of time and a lot of money I think proving what our biologists already know, that over a period of time opening the season a day or two early is not going to have any kind of a population level impact on doves.

Now, again, to be fair, at the national level there’s been concern about mourning dove populations and seeing slight declines there, and so I think some of the Service biologists were just nervous about that.  Also, you know, we had just gone to them with that change that allowed us to open it on the 17th under certain circumstances, and so I think they felt like we were coming back awfully prematurely to ask for another change, another special disposition, and so I think that there was a little bit of reticence on that front as well.

So Kevin and Dave and our team will continue to work with the Central Flyway representatives and try to make our case for why we think this makes a lot of sense, just from a, again, a simplification of the regs, a continuity of the season, hunter opportunity, et cetera.

COMMISSIONER HUGHES:  You know, I’d encourage you to do that.  Opening the first day of the south zone is such a big economic driver and there’s so many landowners and lease owners and outfitters depend on it, and when we let them know ‑‑ when we let them know this year, the first day of August, early August when the season’s going to open, it’s pretty tough for people to plan long term.  It’d be ‑‑ I think it’d be much better if we knew that whatever day it is, the season’s going to open so that hunters can plan and make plans way ahead of time and not wait till the last minute.

MR. SMITH:  Well, that, and Commissioner, I guess, you know, as we go forward and look into subsequent years, if the counsel of this Commission is that you would rather have predictability in terms of ensuring that we’re just going to have a day and set the clock by it, that’s certainly something that we should talk about.

Again, we think this proposal to allow us to open it up on that third Friday in September makes a lot of sense.  Obviously it’s going to vary depending on the year what the date is, but at least it’s a predictable thing that, as you said, folks can plan on.  So we ought to have more discussions as we go through the regs process on that, Commissioner, because we certainly concur with you.

COMMISSIONER FRIEDKIN:  I agree that we should try to, you know, certainly discuss that soon, but also just have a sense directionally of what Fish and Wildlife’s going to do and certainly approach them earlier than we may have in the past with this specific request, get a sense of whether we may get some accommodation for the next season, yes.

MR. SMITH:  Well, and we had strong support by the states in the Central Flyway, and so we thought that we had a pretty overwhelming support for it.  A little bit of a perfect storm too in terms of some changes in key Fish and Wildlife Service personnel that were coming into new positions that had really decision-making authority over this, and so that’s going to be a relationship-building and education process that Kevin and Dave and others, and Cory, will be working on going forward.

COMMISSIONER FRIEDKIN:  Anything to add to that, Kevin?  Do you think they’re ‑‑

MR. KRAAI:  Perfect.  We will.  But there is certainly a calendar issue when you’re dealing with that whole process, and we’ve certainly recognized that by waiting till the early-season regs by the U.S. Fish and Wildlife Service were approved, you know, it is pushing it up and we certainly heard from our hunters.  And if we continue to push for it this season, which as Mr. Smith said, we think is correct, it’ll probably be August again next year before we’ll hear anything from Fish and Wildlife Service.  So it kind of keeps us in limbo.

COMMISSIONER HOLT:  Are they ‑‑ can they do any studies, science, biology?

MR. KRAAI:  Like Mr. Smith said, they said they will be happy to join us in a project and spend lots of money to find the answer, which we already know.

COMMISSIONER HOLT:  So they’ll join us as long as we pay ‑‑

MR. KRAAI:  Yes.

COMMISSIONER HOLT:   ‑‑ kind of thing.

MR. SMITH:  We just ‑‑ I’ll speak very candidly, we don’t have the resources to ‑‑

COMMISSIONER HOLT:  No, I know.

MR. SMITH:   ‑‑ invest in the kind of data that they would say is statistically robust enough, yes.

MR. KRAAI:  And as Carter said, I believe their quote was, they were concerned about regulatory creep with the recent change we had, and quite honestly I think had a lot more to do with it than anything, so.

COMMISSIONER HOLT:  Regulatory creep.  We’ll blame that on Obama too.

(General laughter and discussion.)

MR. KRAAI:  So as I was saying, the early-season regs are official and they are in print, and we’re looking forward to our season starting soon.

Moving on to our proposals for our late-season migratory bird regs, it should be noted that all these dates I’ll show you as proposals were generated through our in-house Migratory Game Bird Technical Committee in the Wildlife Division, and have been vetted and approved, or saw in favorably by our Migratory Game Bird Advisory Board.

To begin with we’ll start with the High Plains Mallard Management Unit in which we’re proposing a youth season to begin the weekend of October 22nd and 23rd, the week before the regular season opens, which was October 29th and October 30th, closed for a four-day split, reopen on Friday, November 4th and run to January 29th.  With respect to a dusky duck, that being a mottled Mexican like and black duck, U.S. Fish and Wildlife Service is requiring that we have a five-day closure with concerns about low populations on mottled ducks.

To look at that on a calendar, just as a reminder, in green you can see the early teal seasons that will begin very soon.  The gray boxes denote the youth seasons that we’re proposing and the blue boxes denote the regular season running to the end of ‑‑ the last Sunday in January.

Moving on to the north and south zones, for both the north and south zone the youth season we’re proposing is October 29th and 30th, again, the weekend prior to the opening of the regular duck season, which is November 5th running through November 27th, the Sunday after Thanksgiving, closing for a two-week split and then reopening December 10th and running through January 29th this year.  Again, like High Plains Mallard Management Unit, we are proposing ‑‑ or there will be a five-day closure on dusky ducks with concerns for mottled ducks.  So that season will not open till November 10th.

To look at that on a calendar, again, the green for both the north and south is the teal season, same as the High Plains.  The gray boxes denote the youth season and, again, the blue boxes denote the regular season.

With respect to bag limits, we are going to have a six-bird per day bag limit with the following sex and species restrictions.  With all other species being six, mergansers have a five-day with a no more than two may be hooded mergansers, and coots, 15 per day.

Moving on to geese, we’ll begin with the eastern zone with light geese opening November 5th and running through January 29th.  November 5th is also the opening day of regular duck season.  With Canada geese, if you ‑‑ as a quick reminder, we did have approval of an early September Canada goose-only season in the eastern zone, which is for the first time in our state’s history, and that will begin this September to run concurrent with teal season.  And just as a sidebar, that was received very favorably by our hunters.

COMMISSIONER HOLT:  Yes, I’ll bet because it runs concurrently with the teal.

MR. KRAAI:  With teal season, yes, sir.  It’s certainly just extra opportunity for some people.

Canada goose season continue similar to light goose season, opening November 4th and running through January 29th.  White-fronted geese have a special management plan that require a shorter season, and we are proposing to open all the goose species together being November 5th and then white-fronted geese will close January 15th due to their management plan’s restrictions.  The bag limit on geese in the east zone will be three Canada geese, two white-fronted geese, and 20 light geese.

To look at that on a map ‑‑ or a calendar, it’s kind of a busy calendar, but in the purple boxes in September you can see the Canada goose-only season, the gray boxes denote the combined light and dark goose seasons with the gray boxes and yellow letters indicating the white-fronted season running out on January 15th.  And then in the blue boxes you can see the beginning of the conservation order, which I’ll talk about here shortly.

COMMISSIONER DUGGINS:  Why, on the early season, why is it limited to Canada geese?

MR. KRAAI:  Well, it’s all we’re allowed by U.S. Fish and Wildlife Service, but it’s also the only birds that are here, and this is for resident Canada geese only.

COMMISSIONER DUGGINS:  Okay.

MR. KRAAI:  And Texas is allowed the whole day, along with many other states, allowed to hold the season in September because we know there’s no migrants in the area at that time.

Moving on to the western zone, you can see denoted in red this is simply, with respect to the west zone, a calendar shift from last year with an opening day for both light and dark geese being November 5th and running to February 5th.  A bag limit on these birds five dark geese, of which no more than one can be a white-fronted goose, and then 20 light geese.  Again, to look at that depicted on a calendar, gray boxes denote the regular light and dark goose season, with the blue boxes indicating the conservation order opening up the day after it closes.

Specifically talking about the light goose conservation order, the dates for the west zone are February 6th to March 25th, and the dates for the east zone that we’re proposing will be January 30th through March 25th.  Again, for both of those zones that is the day after the regular season closes for all waterfowl.

Moving on to Sandhill cranes, Zone A, much like the geese in the western zone is a calendar shift from last year, which is a concurrent season opening November 5th and running to February 5th with a bag limit of three.  Zone B is a zone of concern for whooping crane migration and pass over, so it has a shortened season and has a ‑‑ with respect to U.S. Fish and Wildlife Service, we can only open it so early, that being November 25th this year and then running through February 5th, similar to Zone A.

As for Zone C, we’re opening ‑‑ we’re proposing to open the season December 24th and run through January 29th, which is the close of all waterfowl for that area, and those are the maximum number of days we’re allowed for that area by U.S. Fish and Wildlife Service.

Moving on to extended falconry season proposals for ducks for both the north and south zones, we’re proposing those extra days to start on January 30th and run till February 13th.

With respect to public comment on our proposals, it should be first noted that the majority in some cases, 100 percent of the majority of our comments that we received had to do with things that were outside what we call federal frameworks which we have no control of, so when I speak to you about some of the comments specifically, the ones ‑‑ I’ll only be telling you about the ones that we have control of.  The ones that were outside the federal frameworks I will not ‑‑ we won’t even address.

So specifically to the High Plains Mallard Management Unit, for those that commented in opposition to the proposal and stated a reason for the opposition, in this case all 18 comments were outside what is allowed under federal frameworks.  For those who commented in opposition to the proposal for the north zone and stated a reason, four opposed a concurrent split with the south zone, three wanted a continuous season with no split, all other comments were also not allowed under federal frameworks.

For those who commented in opposition to the proposal for the south zone and stated a reason for the opposition, 10 wanted a later opening date, eight opposed a concurrent split season with the north zone, three opposed opening on the same day as deer season, three wanted an early season for whistling ducks, two wanted a closure on mottled ducks, and one wanted the split season eliminated altogether, and one wanted an earlier opener.

COMMISSIONER DUGGINS:  When you get comments that are out ‑‑ that request action that’s not permitted by the USF&W, do we respond and tell them that?

MR. KRAAI:  I’d have to ask Mr. McDonald.  I don’t believe we do.

COMMISSIONER DUGGINS:  Do we ‑‑ is there a reason to let people know that so they don’t think we’re ignoring them and say, We’re sorry, but that’s not permitted by USF&W?

MR. SMITH:  There is a process for that.

Ann, you want to talk about that?

MS. BRIGHT:  Ann Bright, General Counsel.  Whenever we adopt a rule, in the adoption order that gets published in the Texas Register, we’re required to respond to all comments in opposition.  So we would publish something that explains that we cannot do what the persons in opposition wanted us to do.

COMMISSIONER DUGGINS:  But when you say publish it, that’s ‑‑ you mean is that just a broad statement on the website or something or ‑‑

MS. BRIGHT:  No, it ‑‑

COMMISSIONER DUGGINS:   ‑‑ is it actually a specifically response.

MS. BRIGHT:  It goes into the Texas Register, and we’re statutorily required to respond to each and every comment.  Now we tend to lump them together sometimes if several people make the same comment, but we have to respond to each comment.

COMMISSIONER DUGGINS:  Okay.  That’s all I was suggesting ‑‑

MS. BRIGHT:  And that does get published.  Right.

COMMISSIONER DUGGINS:   ‑‑ so they don’t think we’re ‑‑ the Department is ignoring ‑‑

MS. BRIGHT:  Absolutely.

MR. SMITH:  But to be clear we don’t send each one an individual letter or email responding.  I mean there’s just no way we could do that, they’re just too voluminous.  This, what Ann is talking about, is one process using the public register that we respond.

COMMISSIONER HOLT:  So may I ask a question ‑‑

MS. BRIGHT:  That’s a ‑‑

COMMISSIONER HOLT:   ‑‑ I was going to ‑‑ so Ralph sends one in or I send one in and it comes under this heading, how am I getting an answer back or know I’m getting an answer back?

MS. BRIGHT:  Well, if you’re not checking the Texas Register, you’re probably not.  I mean ‑‑

COMMISSIONER HOLT:  If they’re not checking ‑‑

MS. BRIGHT:   ‑‑ just to be real honest.

COMMISSIONER HOLT:   ‑‑ the Texas Register, do I know that that answer is specific to me?

MS. BRIGHT:  We don’t normally ‑‑ well, we don’t list the names of people that commented, but there ‑‑ we have to restate the comment, so the adoption will include something to the effect of, we received X number of comments opposing for this reason, the Department ‑‑ and then we’ll respond the Department either agrees or disagrees, and then we have to state the reason.

COMMISSIONER DUGGINS:  Could we not have a ‑‑ I’m sorry.  Go ahead.

MS. BRIGHT:  We could.  I mean one of the ‑‑ one thing that might address some of ‑‑ kind of what I think I’m hearing is that we could probably work with communications and set up some sort of link or some way to make sure that our adoption orders are easily accessible from our website so that the public ‑‑ you know, if they’re not going to the Texas Register, maybe there is a way that we can make sure that they get linked to that and they get to see what the response was.

COMMISSIONER DUGGINS:  I think that’d be good ‑‑ or not have some auto reply that says, check ‑‑ it gives them a link, go check this for a response, so they know ‑‑ have an easy way to know what ‑‑ why their comment ‑‑ how their comment was received or what was done with their comment.

COMMISSIONER FRIEDKIN:  Because each one is read.

COMMISSIONER HOLT:  Yes, I mean ‑‑

MS. BRIGHT:  Oh, absolutely.

COMMISSIONER HOLT:   ‑‑ it’d be one way to even know that it’s been received.

COMMISSIONER FRIEDKIN:  Exactly.

COMMISSIONER HOLT:  Yes.  Right.

MS. BRIGHT:  It’s read, considered, responded to, so.

COMMISSIONER HOLT:  I know you all do.

MS. BRIGHT:  Yes, we could probably figure out a way to make those a little bit more accessible to the general public rather than having to kind of scroll through the Texas Register.

COMMISSIONER FRIEDKIN:  Or just a direct response to what we’re reading, a quick direct response with a programmed response if we recognize that it’s due to some federal guideline or statute.

MS. BRIGHT:  Yes.  And, you know, that’s probably just going to be a staffing issue because if ‑‑ that’s really ‑‑ simply because, you know, we’ve got staff that are devoted to the rulemaking process and to responding to all the comments.  And I think for efficiency we would probably want to include ‑‑ just have one process.  I mean we could ‑‑ I guess we could do an auto reply, but that’s going to require somebody to monitor all of those ‑‑

COMMISSIONER FRIEDKIN:  To make sure that they’re actually correct you mean?

MS. BRIGHT:  Well, I mean ‑‑

MR. SMITH:  Well, to respond in the appropriate way.  Again, we’ve got one person that’s handling all of these coming in and he does a masterful job of sorting through it and analyzing them.  We may get a letter; we may get an email; we may get a cocktail napkin.  I mean it’s all over the map, and you’ll get some very thoughtful comments, you’ll get some that are a little harder to decipher than others, you’ll get some that are as long as War and Peace.  So it really does run the gamut.

So I think what might be helpful is if we showed you some examples of how we respond in the public register and how those individual comments are responded to, and then also come back and talk about ways that we might be able to prove, just make ‑‑ improve, making sure folks are aware that they can go to the public register to see how their comments were vetted, considered and responded to.  Because our team does a very thoughtful job of responding to them and making sure we’ve addressed them and provided a rationale for how we’ve considered them and whether we embraced them or there’s some reason like, you know, by federal regs or law we can’t do that.  It’s pretty explicit.

COMMISSIONER FRIEDKIN:  Yes, and I think what Ralph’s saying, and I agree, and we’re spending too much ‑‑ we can move on to something else and talk about it later, but if somebody ‑‑ if it’s being processed and disseminated, and then if it’s a wildlife thing and Clayton sees it, he’s going to read it, and Clayton knows that it’s due to a federal issue, he can hit a smart button on his system and that just sends an auto response to that.  I think that’s all you’re saying, is it’s got to be ‑‑

COMMISSIONER DUGGINS:  That’s all I’m saying ‑‑

COMMISSIONER FRIEDKIN:   ‑‑ it has to be considered.  We’re not talking about adding more, you know, point efficiency.

MS. BRIGHT:  Okay.  Yes, like Carter said, we can ‑‑ you know, let us look into possible ways ‑‑

COMMISSIONER FRIEDKIN:  I think that ‑‑

MS. BRIGHT:   ‑‑ to address some of your concerns ‑‑

COMMISSIONER FRIEDKIN:   ‑‑ the broader issue is just how do we communicate with people ‑‑

MS. BRIGHT:   ‑‑ and maybe come back ‑‑

COMMISSIONER FRIEDKIN:   ‑‑ make sure we get back to them efficiently and let them know that we’re ‑‑

COMMISSIONER HOLT:  We do this?

COMMISSIONER FRIEDKIN:   ‑‑ that we are listening to them.

MS. BRIGHT:  Okay.  We’ll do that.

COMMISSIONER FRIEDKIN:  Great.

MR. KRAAI:  All right.  Moving on to public comment on geese ‑‑

COMMISSIONER HOLT:  By the way, Ralph’s the one that’s sending them all in.

(General laughter.)

COMMISSIONER HOLT:  He’s not getting the answers he wants.

(General laughter.)

COMMISSIONER FRIEDKIN:  And the Panhandles ones are coming from Bivins.

COMMISSIONER HOLT:  Yes, yes.

(General laughter.)

MR. KRAAI:  For those who commented in opposition to the proposal for the east zone geese and stated a reason, 14 wanted the season for white-fronted geese to run later rather than earlier, all others were outside federal frameworks.  For those who commented in opposition to the proposal for the west zone and stated a reason, four wanted a later season and all other comments were outside federal frameworks.

For those who commented in opposition for the proposal for the light goose conservation order and stated a reason, three opposed the conservation order outright, three wanted the same opener in both zones, one wanted the conservation order opened only after all other available dates for waterfowl had been used, one wanted the light goose conservation order to be held during the split in the duck season, and one wanted the conservation order to open earlier.

With respect to public comment on Sandhill cranes, for those that commented in opposition and stated a reason, 11 wanted an earlier opener in Zone C.  With respect to falconry, for those who commented in opposition to the proposal for the extended falconry season and stated a reason, two stated that the proposed seasons interferes with breeding and nesting.

And for those who commented in opposition to the proposal for the youth waterfowl season and stated a specific reason, five stated that the season is too early, three stated that more time should be devoted to youth seasons in general, two stated that the proposed season interferes with youth deer season, and one stated that there should be no youth season at all.

COMMISSIONER DUGGINS:  One person?

MR. KRAAI:  One.  So in conclusion, tomorrow we’ll be proposing to you official recommendation for adoption of these seasons.  And are there any other questions?

COMMISSIONER FRIEDKIN:  Any other questions for Kevin?

(No response.)

COMMISSIONER FRIEDKIN:  Thank you, Kevin.  Appreciate all your efforts.

If no further discussion, I’ll place this item on the Thursday Commission meeting agenda for public comment and action.

Item 3, amendments to the commercial non-game proclamation sale of protected non-game animals, recommended adoption of proposed changes.  John Davis.

MR. DAVIS:  Good morning, Chairman, Commissioners.  For the record my name is John Davis, I’m the Wildlife Diversity Program Director in the Wildlife Division.  I’d like to talk to you about some proposed amendments to the commercial non-game permit rules.

First we have a couple of substantive issues and a couple of non-substantive issues I would like to discuss.  First would be to allow commercial non-game permit holders to possess and sell dead armadillos.  Currently this is not addressed in the rules, and we would like to address that.

Second, we would like to remove all species of bats from the applicability of the rules.  And to explain a little bit about what this means, currently they are listed in the black list and there is a bit of confusion because 63.101 in Parks and Wildlife Code already provides for protection of these species from commercial trade.  And so what we want to do is remove those from the rules to clarify that the statute stands on its own.

We would like to add to that a protection.  We’d like to add them to the list of exceptions in 65.325(b).  There are several species that are simply listed as exceptions to the commercial non-game permit rules, and we would like to just add that security with a citation that refers people back to Parks and Wildlife Code 63.101.

Nonsubstantive changes we would like to simply provide clarification that black list species can be possessed and sold provided they’re lawfully acquired from an out-of-state source.  Currently the law allows for that; however, we’ve received some feedback from constituents that it’s perhaps not as clear as it could be, so we would like to add language to simply clarify that.  And finally, we would like to update some internal references.  There are instances where it refers to 65.331(d); we’d like to update that to include (b) and (d).

Public comment, we received no comments on this.  Tomorrow I will provide a recommendation for you, but at this point in time I’ll simply entertain any questions that you might have.

COMMISSIONER DUGGINS:  On this first bullet point ‑‑ sorry?

COMMISSIONER HOLT:  No, go ahead.  Sorry.

COMMISSIONER DUGGINS:  On this first bullet point, if we ‑‑ if our statute says it’s illegal to possess a bat, dead bat, but Kansas says it’s okay, what you’re saying is, we’ll allow you to possess it if you go buy it in Kansas?

MR. DAVIS:  I’m afraid I’ll have to defer to law enforcement for the answer to that question.

COMMISSIONER HOLT:  I don’t quite understand what we’re doing here.

Are you going to call Ann up?

(General laughter.)

MR. FLORES:  I was going to say I don’t know what they’d want to do with that dead bat.

COMMISSIONER HOLT:  Yes.  Right.

MR. FLORES:  But lawfully obtaining ‑‑ Peter Flores, Director of Law Enforcement, and I’ll do my best, and David Sinclair’s here, in case he gives me the oh, that’s not it.

Any lawfully obtained species that we protect that they can document is currently allowed.  And that would include, I assume, bats.  But, you know, they’d have to provide documentation, just no different from any other species.  So that’s if they had a bear, for example, they could lawfully possess the bear if it’s documented from another state lawfully taken, lawfully possessed.  But not one that’s Texas ‑‑ a Texas resource.  So that’s like the armadillos, you know, you can’t have a live one but you can have a dead one.

COMMISSIONER HOLT:  You know, there was zero comments, so this wasn’t of high interest to anybody I don’t think.

MR. FLORES:  Here comes my bat expert, David Sinclair.

(General laughter.)

MR. SINCLAIR:  For the record I’m David Sinclair, Chief of Staff, and I hope I have a job after I contradict what the Colonel just said.  And I was kind of in the back and I didn’t hear your question, but I think you’re asking about bats brought in from outside of the state, could they be lawfully possessed?

COMMISSIONER DUGGINS:  Well, I used bats as an example, but what I was trying to get at is if our policy is, you should not possess these animals or this game, whatever, we’re still going to let you do it as long as you go kill it or get it somewhere else, some place outside the state of Texas.

MR. SINCLAIR:  Well, we’re taking bats off the ‑‑

COMMISSIONER DUGGINS:  Maybe bats is a bad example for something ‑‑

MR. SINCLAIR:  Well, let me talk about that briefly.  The Parks and Wildlife Code prohibits the possession of a bat, so bats, regardless of where they come from, cannot be brought into the state and possessed or sold.  With regard to the other species, we have a black list where you can’t take them out of the wild here, but you can bring them in ‑‑ if they’re lawfully acquired from another state, you can bring them in and possess them and sell them.

COMMISSIONER DUGGINS:  How is that list determined?  Why bats aren’t on it, so we must have gone through some such process.

MR. SINCLAIR:  The bats, they’re protected by the Parks and Wildlife Code, statute and, you know, it supersedes anything that the Commission can do.  The other species are not protected.  They’re listed under Chapter 67, which gives the Commission the authority to adopt regulations on non-game species, and that’s what we’ve done with the commercial non-game.

COMMISSIONER DUGGINS:  I guess my question is how did we determine what went on that list?

MR. SMITH:  Well, and I think that was a function of our Wildlife Division that analyze things.

Clayton, is there some ‑‑ John, you want to address that in terms of that process?  Maybe Matt Wagner, who was probably involved in that early on would be good.

MR. WAGNER:  Matt Wagner, Deputy Director for Wildlife Division.  And we really started this whole process back in 1997 when we discovered that there were many species of non-game that had commercial value.  And at that time we didn’t have any permits or processes in place and we created a list of non-game that were commercially collected and sold, traded for various purposes, and there’s a long list.  And over the years we’ve reviewed that list and we periodically get requests from people to add things on the list.  In this case, dead armadillos.

And what we’ve done is pull together a Wildlife Diversity Advisory Committee that helps us determine if the non-game in question are able to withstand this commercial collection, are they abundant in the state, for example, something like green anole lizards.  Obviously we’ve got also a list of threatened and endangered non-game that aren’t allowed to be possessed at all.

So the majority of non-game, we have close to 1,000 different species are not on the white list, which is allowing commercial use.  But we do have a number, I think there’s approximately 65 species of snakes, other reptiles, amphibians that are commercially collected and used in ‑‑ for pet trade for example is a big use.

COMMISSIONER DUGGINS:  Where do you find this list, what rule is it?

MR. WAGNER:  Well, we’ve got ‑‑ the list is actually published on the Texas Administrative Code.  I don’t have that citation available.  We can certainly get that list to you.  You bet.

COMMISSIONER DUGGINS:  Thank you.

MR. DAVIS:  It’s in your ‑‑

MR. SMITH:  It’s in your packet.

MR. DAVIS:  It’s in your packet, page 106 and 107.

COMMISSIONER DUGGINS:  Oh.

COMMISSIONER HOLT:  You can study it tonight.

(General laughter.)

COMMISSIONER MORIAN:  Okay.  I’ve got one question.

COMMISSIONER HOLT:  The issue’s joined ‑‑

COMMISSIONER MORIAN:  Apparently this is ‑‑

COMMISSIONER HOLT:   ‑‑ because Ralph ‑‑ because we know Ralph actually will study it.

(General laughter.)

COMMISSIONER MORIAN:   ‑‑ with the bats, is that just a housekeeping item, or is there some event that prompted you to focus on that?

MR. DAVIS:  The question is this just a housekeeping item for bats or was there some incident that made us address this issue.  I think the confusion that we’ve been discussing here this morning is exactly why we’re wanting to remove this.  Folks were seeing these on the black list and it was just causing some confusion because they were actually in statute and protected in statute.  So we want to remove any of that confusion.

COMMISSIONER MORIAN:  There wasn’t some commerce in bats for the purpose ‑‑

MR. DAVIS:  Not that I know of, no, sir.

COMMISSIONER MORIAN:   ‑‑ of pet trade.  Thank you.

COMMISSIONER FRIEDKIN:  Anything else for John, any other questions?

(No response.)

COMMISSIONER FRIEDKIN:  Thank you, John.  Appreciate it.

COMMISSIONER DUGGINS:  Thank you.

COMMISSIONER FRIEDKIN:  Okay.  No further discussion, I’ll place this item on the Thursday Commission meeting agenda for public comment and action.

Committee Item Number 4, amendments to the oyster proclamation regarding daily sack limits, time closures and shell recovery program and implementation of Senate Bill 932, recommended adoption, proposed changes.  Mr. Lance Robinson.

MR. ROBINSON:  Good morning, Chairman, Commissioners.  For the record my name is Lance Robinson, and I’m here today to go over the proposed statewide oyster proclamations for action tomorrow.  There are four items that we’re going to go through this morning, two of which are a direct result of Senate Bill 932 that was recently passed.

The first one deals with Oyster Shell Recovery and Replacement Program.  The Department has had the authority to create such a program, but there really has been no funding mechanism to implement.  Senate Bill 932 established that dedicated funding source for the purchase of shell and other suitable cultch materials for placing into coastal waters of Texas.

That cultch, or that shell material, when placed in the water provides substrate upon which juvenile oysters attach to and grow and enhance that population.  Studies that have been done in other states, particularly Louisiana and Florida, have looked at the cost benefit of these types of programs and have documented the benefit ratios of as high 1 to 20 for putting cultch materials and increasing oyster production.

What the program would do would establish a shell recovery tag.  That tag would replace the currently tag, harvester’s tag that is required by the State Health Department, the tag would have to be attached to every sack on the boat and remain on that sack until it reached the final destination of the dealer.

The tags will be purchased through Parks and Wildlife law enforcement offices at a cost of 20 cents per tag.  The funds generated from the sale of those tags would be dedicated to oyster shell recovery or cultch plants.  Just for some information there, a five-year average over sacks ‑‑ of total sacks harvested in Texas averages about 850,000 sacks a year.  That would generate about $170,000 a year.

There are two different tags that will be sold.  There’s a white and a green tag, and the reason for the difference is driven by State Health Department rules.  There is a ‑‑ the white tag is the primary tag, the harvesters tag that would be affixed to the sack.  The green tag comes into play under Health Department rules dealing with what they call a time temperature matrix.  Federal FDA rules and the National Shellfish Sanitation Program, along with the State Health Department have implemented rules to reduce the incidents of Vibrio infections to people who consume oysters.  And so the time temperature matrix would ‑‑ it stipulates the number of hours from the time the oyster is harvested until the time the oyster has to be under refrigeration, and there are different ‑‑ and it’s based on water temperatures.

For instance, currently, in the month of August, they have one hour from the time of harvest until they have to get it under refrigeration.  And the green tags, if you’re going ‑‑ if you can’t meet that matrix, you can’t get that product under refrigeration during that time frame, then you have to use the green tag which stipulates that that product can only be shucked or it can be treated with some post-harvest ‑‑ approved post-harvest treatment that would eradicate the bacteria.

COMMISSIONER DUGGINS:  Before you move on ‑‑

MR. ROBINSON:  Yes, sir.

COMMISSIONER DUGGINS:   ‑‑ how was the 20-cent number determined?

MR. ROBINSON:  We worked closely with industry in trying to determine what would be a suitable cost to the industry.  This is borne by industry, this is in addition to a 33 cents per sack that they currently pay.  That money is ‑‑ it goes to ‑‑ into general revenue and appropriated to the State Health Department for their use.  The industry was very active and actually it increased the number.  It started out much lower value, but they ended up feeling that 20 cents a sack was ‑‑ wouldn’t be too onerous for them.

COMMISSIONER FRIEDKIN:  Lance, what was the fiscal note on this ‑‑ attached to this, the fiscal implication?  What’s the cost of the tags and the program?

MR. ROBINSON:  Cost of the tags right now, which come out of that 20-cent fee, the tags we just ‑‑ we’ll be purchasing, about a nickel a tag.  So we’re looking at about 1.2 million tag purchase, about $70,000.

COMMISSIONER FRIEDKIN:  And some administrative allocation and so ‑‑

MR. ROBINSON:  Uh-huh.

COMMISSIONER DUGGINS:  That’s what I was getting at.

MR. ROBINSON:  Okay.  The second proposal deals with the emergency closure of areas around the bay.  We have been receiving, over the last several years, concerns from the oyster industry specifically about the harvest of undersized oysters in particular bay systems or particular areas.  And they have actively sought at times to try to restrict harvest by closing those areas, but the ability to close those areas quickly didn’t exist.  And so Senate Bill 932 would delegate the closure authority by the Commission to the Executive Director.  That closure would be based on a percent undersize of oysters in the area and would provide the Department the ability to close those areas within three days.

COMMISSIONER DUGGINS:  For how long?

MR. ROBINSON:  They would remain closed ‑‑ it would be a reopening criteria, but they would remain closed until whatever that percent undersize threshold is used has been met or it could be to the end of the season and reopen.  They have to reopen the beginning of the next season.

The last two items are ‑‑ again, were driven by some concerns by industry who came to us looking to try to stabilize some of the price structure and try to distribute some of the harvest throughout the season.  The additional benefit that would be realized by addressing sack limits and fishing times would delay some of that harvest of oysters, especially at the beginning of the season in November so that they would take advantage of that tail end of the spawning season.  These two proposals would be expected to lengthen the productive part of that season, which would relate to total number of sacks per vessel harvested.

This is a typical pattern that we see, and have seen it for a number of years over the season.  Public season opens in November and closes at the end of April of the following calendar year.  When the season opens, we typically see a large ‑‑ high production, and it tails off as you move further into the season.  This is the most recent season starting in November of 2010 and ending in April of 2011.  We saw for instance production starting out at about 6500 sacks per day being harvested, by the end of the season we were below 4,000 sacks, about a 40 percent decline in number of sacks harvested per day.

As similar decline in value of price per sack paid to the industry, about an 18 percent drop from the beginning of the season to the end.  What the proposals are attempting to do is to delay some of that harvest in the first few months, November and December, and maybe delay that harvest until later in the season after the first of the year.  The water temperatures are cooler and also will provide for a higher quality oyster during that time because of that cooler water temperature.

So the proposals for consideration and action tomorrow would be to reduce the daily sack limit from the current 90 sacks per day to 50 sacks per day and then to reduce the legal fishing times from sunrise to 3:30 p.m.  It’s currently sunrise to sunset.  We hope ‑‑

Yes, sir.

COMMISSIONER DUGGINS:  Is that sack limit a per person or per tag?

MR. ROBINSON:  It’s a per person per vessel.

COMMISSIONER DUGGINS:  So if they’d want to put 15 people on the boat, they could get 15 ‑‑

MR. ROBINSON:  It’s per vessel.  No, it’s 90 sacks per vessel per day.

COMMISSIONER DUGGINS:  Per vessel.  Okay.

MR. ROBINSON:  There were five public hearings held along the Coast.  This is the result of those comments that we received.  Generally the industry is supportive of all of these proposals.  You’ll notice the higher number of opposition on the reduction in harvest hours for the folks who provided information as to their opposition.  It was primarily driven by concerns over potential mechanical problems that would delay them getting out at sunrise and shortening their day, or weather concerns.  If the weather was bad on a given day, they would have a shorter amount of time in that day with a 3:30 closure to harvest their limits.

And one thing to note as well, all the proposals were unanimously endorsed by the Coastal Resources Advisory Committee in early July.

COMMISSIONER FRIEDKIN:  Thanks.

MR. ROBINSON:  That’s all my ‑‑ any questions, I’ll be happy to answer.

COMMISSIONER FRIEDKIN:  Any questions or comments?

(No response.)

COMMISSIONER FRIEDKIN:  Commissioner Duggins, questions or comments?

COMMISSIONER DUGGINS:  No, sir.  Sorry.

COMMISSIONER FRIEDKIN:  Okay.  Appreciate it.

Okay.  So no further discussion, I’ll place this item on the Thursday Commission meeting agenda for public comment and action.

Item 5, implementation of legislation during the 82nd Texas Legislature ‑‑ Legislative session, House Bill 555 relating to reportable boating accidents.  Mr. Jeff Parrish.

MR. PARRISH:  Good morning, Mr. Chairman.

COMMISSIONER FRIEDKIN:  How are you?

MR. PARRISH:  Okay.

(General laughter.)

MR. PARRISH:  My name’s Jeff Parrish.  I’m the Assistant Chief of Marine Enforcement and the Boating Law Administrator for this Agency.

COMMISSIONER HOLT:  Gets your attention.

MR. PARRISH:  I’m here to ‑‑ sorry ‑‑ I’m here to talk about House Bill 55.  It was authored by Representative Howard and sponsored by Senator Watson.  Basically it talks about reporting to the Coast Guard for boating accidents that we have.  This bills allows for consistency with the United States Coast Guard for determining when a boating accident is considered reportable.

Currently the dollar amount is $500, and the Coast Guard is $2,000.  So we’re trying to fix that.  And it also allows for operators of vessels involved in an accident only to contact TPWD rather than complete the accident report.  And the statute as it’s going to be written is property damage in an amount set by the Commission of not less than $2,000 and whether there’s injuries to a person requiring treatment beyond first aid, or a fatality.

And the requirement to reporting a boating accident is an operator currently had to fill out the report.  We’re trying to change it to where it’s an officer can do the report and the operator only has to contact the Agency.  And this is to comply with the requirements of the United States Coast Guard recreational boating safety grant.  And basically what we do is we have to report all reportable boating accidents to the Coast Guard, and that’s mandated by the Code of Federal Regulations.

And the benefit to this is the minimum $2,000 threshold in damages reduces manpower because currently we were sending officers out for $500 accidents.  We couldn’t even turn them in to the Coast Guard unless they were $2,000, so we were just wasting manpower.  And another thing we wanted to do was take it out of statute and put it into Commission rule.  That way, if the Coast Guard increased their $2,000 minimum, by Commission rule we could change it to be consistent with the Coast Guard.

And having an operator report the incident rather than complete the report himself reduces the number of incomplete or late reports submitted to the U.S. Coast Guard for approval.  What happens is, the Coast Guard looks at all reports, and if that report doesn’t have all the information that they require, they kick it back.  And basically we’re not getting that information from the operators, so that’s why it would be better to send one of our trained officers out to do the reporting.

And we only had one public comment saying no, and basically this opposition was because he just wanted the operator to be continuing to do the operator report, which we have a problem with that because we don’t collect all the data we want to collect on that.  And one of the big ones we have is there’s a check box on there that says, Was this boating accident alcohol related?

COMMISSIONER HOLT:  I bet.

(General laughter.)

MR. PARRISH:  Well, an operator’s not going to go, Yeah.

COMMISSIONER HOLT:  I think that first picture ‑‑

(General laughter.)

COMMISSIONER HOLT:  Temporary Insanity, was that the name of the boat?  Seriously, wasn’t that the name?

COMMISSIONER MARTIN:  Yes.

MR. PARRISH:  Okay.  That’s all I have.  Do you all have any questions for me?

COMMISSIONER HOLT:  [indiscernible].

COMMISSIONER SCOTT:  What, out of curiosity, is the penalty if somebody doesn’t call and report this stuff?

MR. PARRISH:  It’s a Class C Parks and Wildlife Code misdemeanor, which is a $500 fine and JP court.

COMMISSIONER FRIEDKIN:  Commissioner Duggins?

COMMISSIONER DUGGINS:  If you look at 141 on that book, isn’t that the proposed change that you want, the 55.850?

MR. PARRISH:  Yes, sir.

COMMISSIONER DUGGINS:  It seems to me that the ‑‑ it’s too loose to say that they can report by phone, elect in writing.  And I think we ought to be more specific.  Somebody can say, Well, I called it in, and then you got to go ‑‑

COMMISSIONER HOLT:  How do you prove it and ‑‑

COMMISSIONER DUGGINS:   ‑‑ how do you prove whether somebody did that or not.  I think that ought to be more limited and I question whether we ought to give them 30 days.  I mean isn’t two weeks sufficient before all this ‑‑ before this grows cold if there’s any reason to investigate it?

MR. PARRISH:  Well, the 30 days, that’s actually a U.S. Coast Guard requirement, that we followed their guidelines on.  Now we have 30 days to get the report to the Coast Guard ‑‑ the Coast Guard, through their own CFR says that an operator has 30 days to report the incident.

COMMISSIONER DUGGINS:  Well, I mean why wouldn’t you want it to sooner while it’s still fresh, and what’s wrong with it.  Even if the Coast Guard says 30, why wouldn’t we say 15?

MR. PARRISH:  Right.  Well, we are asking for 15 days in our statute.  The officer must report to us within 15 days, that way we have 15 days to get it to the Coast Guard, which satisfies their 30-day reporting requirement.

COMMISSIONER DUGGINS:  Well, this says 30.

MR. PARRISH:  For the operator to notify them.

COMMISSIONER DUGGINS:  I still think the operator ought to do it, and ought to have two weeks as plenty of time when you’ve had an accident and I still ‑‑ my suggestion would be we not allow it by phone, specify greater detail on how it’s to be reported.

COMMISSIONER FRIEDKIN:  Ann.

MS. BRIGHT:  We can make it 15 days if that’s what you want.  And we can also ‑‑ you want to take out phone?

COMMISSIONER DUGGINS:  I would definitely take out phone.  I think we ought to just have you either do it through the website, or do it in writing and specify how it’s ‑‑ where it’s to be sent.  So if somebody says, Well, I mailed a letter to Parks and Wildlife at 4200 Smith School Road, how do you know whether it was ever sent or not?

COMMISSIONER HOLT:  It has to be registered mail or something ‑‑

COMMISSIONER DUGGINS:  Yes.  Exactly.

COMMISSIONER FRIEDKIN:  You can ask Jeff ‑‑

MR. SMITH:  Well, I just wanted to get it from an operational perspective what he’s seen in terms of the reporting, any issues there.  I mean I agree, the better the records so you don’t get into the he said/she said, because we certainly have that.

MR. PARRISH:  No, there’s not a problem making it 15 days.  And the only thing that I would have to go back and check on, that even though it’s 30 days in the TAC, I’d have to go back and check the statute.  I think the statute also says 30 days, which would be a legislative change.

MR. SMITH:  But what about the submission in writing, if we limit it to that and whether it’s certified mail, return receipt requested, an email record, I mean if we tighten that up I think is what the Commissioner is suggesting.  Do you have any compunctions about that in terms of ‑‑

MR. PARRISH:  No.  No, sir.

MR. SMITH:  Okay.

MR. PARRISH:  That could be handled.

MR. SMITH:  Okay.

MR. PARRISH:  We could certainly ‑‑

COMMISSIONER DUGGINS:  I think everybody else is ‑‑ I’m just saying I think it’s ‑‑

COMMISSIONER FALCON:  I had a question.  So this reporting time table is for ‑‑ including fatalities?

MR. PARRISH:  No, the fatalities have to reported within 48 hours, and that’s in statute.

COMMISSIONER FALCON:  Okay.  And serious injury?

MR. PARRISH:  Serious injury, it falls under the 30 days.

COMMISSIONER FALCON:  The 30 days.  Okay.

COMMISSIONER DUGGINS:  That’s why I think it ought to be sooner, while it’s fresh.

MR. PARRISH:  But I can tell you from an operational standpoint, usually when there is a boating accident, our officers are on the scene that day within minutes.

COMMISSIONER DUGGINS:  Oh.

COMMISSIONER FALCON:  But here it would be ‑‑ this is the person that was involved in the accident reporting it?

MR. PARRISH:  Right.  Ninety-nine percent of the boating accidents that we get where the person actually reports to us either by phone or we get an operator’s report in the mail, those are scratches in the jail code.  They’re something he’s trying to get changed or just reported for insurance purposes.  Usually when there’s a boating accident that involves an injury or a fatality, it’s our officers that day are on the scene.  I mean it’s handled just like a vehicle accident.

COMMISSIONER FALCON:  Yes.  But if there wasn’t somebody that responded, they have 48 hours to report a fatality.

MR. PARRISH:  For a fatality.

COMMISSIONER FALCON:  And then ‑‑

COMMISSIONER FRIEDKIN:  This also seems like a long time.

COMMISSIONER MORIAN:  It’s the proposed order we have to report it, or the law?  Who has to report it?

COMMISSIONER FALCON:  The owner.  The driver is the one ‑‑ of the vehicle that reports it, or the owner?

MR. PARRISH:  It says ‑‑ the way the statute reads it says the owner or the operator.  But normally it’s the operator that’s supposed to report.

MR. SMITH:  I do want to make sure we’ve got clarity on what you all are seeking with respect to the written record and what you’d like to see reflected change-wise.

COMMISSIONER FRIEDKIN:  Ann, could you recap what we want documented ‑‑ we amended it?

MS. BRIGHT:  It sounds like it’s going to be in writing, by electronic mail or via the Department website, but the requirement would be that if it’s sent by letter, it needs to be by certified or registered mail.  Is that correct?

COMMISSIONER DUGGINS:  And wouldn’t we want to specify the electronic mail address?

MS. BRIGHT:  Right.  We can do that ‑‑ yes, we can put in a mail address, and then we can ‑‑ I’m assuming there’s a place set up on the website for these reports.

MR. PARRISH:  Yes, we already have a link on the website ‑‑

COMMISSIONER DUGGINS:  None of this is directed ‑‑ is any criticism at all at law enforcement.  I’m just suggesting we tighten it up so people can’t evade a legitimate report, getting it into you so you can look at it if you want to look at it.

MS. BRIGHT:  Okay.

MR. PARRISH:  And we currently already do have a statute that’s in place that failure to report is a Class C misdemeanor, and I think a lot of people are aware of that.  They know that ‑‑

COMMISSIONER DUGGINS:  That would be hard to prosecute if they said, Well, I called it in.  I don’t know who I talked to, but I called it in.  That’s why I’m saying take that out.

COMMISSIONER FRIEDKIN:  Okay.

MS. BRIGHT:  Got it.  Thanks.

COMMISSIONER FRIEDKIN:  Thank you.

Any other questions?

MR. PARRISH:  Any other questions for me?

(No response.)

MR. PARRISH:  Okay.

COMMISSIONER FRIEDKIN:  Thank you.

MR. PARRISH:  Thank you for your time.

COMMISSIONER FRIEDKIN:  And I’ll place this item on the Thursday Commission meeting agenda for public comment and action.

Item 6, implementation of legislation during the 82nd Texas Legislative session, House Bill 787 relating to abandoned, wrecked, dismantled, discarded and inoperable aircraft and vessels.  Frances Stiles.

MS. STILES:  My name is Frances Stiles.  I’m the Manager of the Boat Titling and Registration Section for Texas Parks and Wildlife.  This bill, House Bill 787, allowed for the clean-up and the disposal relating to vehicles, boats and outboard motors and it added the category of aircraft, and that was a change to the Transportation Code.  Additionally, the bill changed the Parks and Wildlife Code, Chapter 31 and added a process to allow for titling of abandoned boats.

Historically, what we’ve had before this bill implemented was the only way that a person could deal with an abandoned boat that was left on their property was in the Transportation Code and it allowed to be reported to local law enforcement.  Well, if it was on local law ‑‑ if it was on their private property, most local law enforcement did not have the resources to allocate to come and pick these up.  So this is not only a statewide problem, it’s a nationwide problem.  Most states deal with this in some form or fashion.

What I have on the screen is an abbreviated graph of what the process for handling abandoned boats is, and this is taken from a 2006 survey from NOAA.  And what it does is, as far as abandoned boats, is it allows owner notification and then if we can find an owner, then there’s usually two options, is either an owner comes and picks up a boat or an owner refuses to deal with it and then it’s left there.

The option that we have before this bill was to contact local law enforcement.  Like I said, most local law enforcement would not deal with it if it was on private property.  What the bill did was it added this additional box that’s highlighted in white that some other states had, was the ability to allow the finder to title the vessel if the owner did not pick it up and law enforcement did not pick it up.

The current process that we have for a bonded title allows an applicant to provide documentation and affidavits to us describing the situation.  We verify that the asset is not stolen, that notification is sent to owners and lienholders, and then if there is no claim of ownership, then we issue ‑‑ then the applicant will purchase a surety bond in the amount of one and a half times the value of the asset.  We issue a title with the bond information, and the bond stays in effect for a period of three years.  So if a legitimate owner comes forward to make a claim, then there is a process for financial compensation.

What we have now in the Administrative Code is that anyone applying for a bonded title that does not have any type of documentation for ownership is not allowed to be issued a bonded title.  By adding abandoned boats we needed to amend the Administrative Code because most of the people that have an abandoned boat on their property will not have any kind of documentation for ownership.

So what we have is the amendment to the Texas Administrative Code to allow abandoned boats.  And what this does is requires that the definition of an abandoned boat or outboard motor be met and that is that it has been left abandoned on private property for more than seven consecutive days.  We also propose to use both the statewide system and we do have a national database to determine ownership.  So if there is an owner within Texas or in other states, then we would have the ability to identify that and send notification to those owners.

The statute requires notification to local law enforcement.  If they do want to come pick it up, then they have that option.  Then we also would define that any disputed claims would be referred to local courts for any kind of jurisdiction ‑‑ local courts of jurisdictions for any claims.

Additionally, when we looked at what other states were doing, and similar processes to this, it requires a posting.  We want to ‑‑ if someone has lost their boat, then we want to give notice.  Most historic processes have postings in local newspapers.  Well, as society is migrating more and more to electronic media, one of the things that we did find was one agency, which was NOAA, has a posting on their website for their derelict and wrecked vessel program.

So what we did was we basically borrowed that concept and since this Agency is the agency for titling and registration, we propose to post the notice on our Agency website, and I have an example of the page that would be presented.  It’ll give basically a basic definition of the boat or outboard motor that is being proposed to be titled, and it would stay up for a period of six months.  It also has information as far as if there is an owner out there, how to make a claim, what to contact and to resolve that.

So that is basically the process as far as the amendment to the Texas Administrative Code.  Now while the topic of abandoned boats does not exactly bring about wedded bliss to everybody, this does have a little bit of benefit to the Agency.  It provides a solution to the public that we currently did not have before, and quite frankly we get at least a phone call every single day, or more regarding a boat that someone will define as being abandoned on their property.  And all we could do by statute was to refer them to local law enforcement, so it bounced back and forth.  This way it does give us another alternative to offer to those people that are willing to go through the bonded title process.

This will provide for encouragement of recycling and reuse for environmental clean-up by attaching this process to the bonded titled program.  It required no programming, no IT programming resources, it was a program already set up that we could add it on to.  Additionally it will add a small amount of additional revenue to the Agency by bringing these assets in to the revenue stream through title and subsequent registration.

And as far as comments, we had one comment that was in favor of this amendment.  We have taken ‑‑ we’ve developed a form for notification to local law enforcement and we have worked with Austin Police Department to get comments on that as far as this is something that they could use.  We did have some questions from the Brazos River Authority, but it was a basic question of what the procedure was.  So in general we had one comment for this from the public in favor of the amendment.

If you have questions on the ‑‑

COMMISSIONER FRIEDKIN:  Commissioner Scott.

COMMISSIONER SCOTT:  I’ve got one.  I’m a little familiar with the way the Coast Guard ‑‑ I mean where the Coast Guard and the Corps handle bigger vessels down on the coast, obviously this doesn’t apply, but ‑‑ and since there wasn’t but one comment, this is going to be short and sweet.

(General laughter.)

COMMISSIONER SCOTT:  But, no, seriously who establishes the value to get the bond?

MS. STILES:  What we typically use is the National ‑‑ NADA, National Association of Automobile Dealers.

COMMISSIONER HOLT:  The blue book-type thing, yes.

MS. STILES:  Yes, it’s similar to a blue book, it’s the yellow book, and that is what the insurance industry uses.  That’s basically where we get ‑‑ it has a wider variety of boat information.  The blue book has some boats, but not that much.

COMMISSIONER SCOTT:  My comment to that, I had an idea that’s what you probably ‑‑ something along that line.  If you get a boat that’s up on the ground and everything, obviously it’s not worth a whole lot.  So my other comment would be, you know, if we’re trying to do this as a service for people to clean up, you better be able to discount a whole lot off of whatever that book is, because obviously it’s junk when it’s up on ‑‑

MS. STILES:  Right.

COMMISSIONER SCOTT:   ‑‑ up on the ground.  But I was just curious how you all ‑‑

MS. STILES:  On a lot of these, depending on the information that’s provided, these are in bad shape, and they will either have like a low value and a high value.  We typically go with the low value.

COMMISSIONER SCOTT:  Just to get rid of it?

MS. STILES:  Yes.  Also, if the person doesn’t like the value that’s established, they are welcome to go to a licensed marine surveyor or marine dealer and get an appraisal of the boat, a written appraisal, and we will use that value.  So they have the choice that ‑‑ you know, we’re basically trying to save them an extra trip.  But if they don’t like the value, then they do have another alternative that we’ll honor.

COMMISSIONER SCOTT:  Ms. Stiles, thank you.

COMMISSIONER FRIEDKIN:  Any other questions?

Commissioner Duggins?

COMMISSIONER DUGGINS:  If the language that I think you’re proposing is in page 155 of our books, and I wonder if we should try to tighten up D, as in David, (1).  You say the applicant shall send notice to the law enforcement agency in whose jurisdiction the property is located.  I mean could that – that could be a police department, that could be the DPS, that could be a sheriff.  It seems to me that’s a little vague.  And then we say, in the last sentence we say, The agency receiving the notification shall notify the applicant.  I mean are we purporting to tell a sheriff’s department what to do?  Can we do that?

MS. STILES:  We’ve developed a form that they can fill out and send back to us.  It also gives 30 days, that if we don’t hear from them in 30 days, then we can go ahead and proceed with that.  But we’ve done ‑‑ we’ve prepared this process to make it as easy as possible on them.

COMMISSIONER DUGGINS:  Well, doesn’t every county have a sheriff?

MS. STILES:  Yes.

COMMISSIONER DUGGINS:  Couldn’t we specify that it goes to the sheriff?  I’m not ‑‑ again, I’m just trying to eliminate vagueness, and it seems like that’s a bit vague as it’s written.  And then if we talk about the applicant provides a copy, a certified mail to the law enforcement agency, and then say the applicant has to provide a copy to us, but we don’t say how they’re to provide that, even though we’ve got a 10-day time frame that we’ve got to then issue ‑‑ we’ve got to act within 10 days of receipt.  How do we know when we received it if we don’t specify how they’re to provide it?

MS. BRIGHT:  We can tighten that up.  What would you suggest?  Certified mail to the appropriate municipal or ‑‑ would it be municipal or county law enforcement?  I mean some of these are probably the appropriate jurisdiction, you know, like if it was in the city of Austin, it probably would be Austin P.D. as opposed to Travis County Sheriff.

COMMISSIONER DUGGINS:  Then I would say either the police department or ‑‑ local police department or sheriff as opposed to law enforcement agency.

MS. BRIGHT:  Okay.

COMMISSIONER DUGGINS:  I mean however ‑‑ whatever the right terminology is.  And then specify that the copy that comes to us has got to be provided certified mail too since they’re providing a certified mail to the police department.

MS. BRIGHT:  Okay.

COMMISSIONER FRIEDKIN:  Any other questions or comments for Frances?

(No response.)

COMMISSIONER FRIEDKIN:  Thank you, Frances.

MS. STILES:  Okay.  This is an action item for tomorrow.

COMMISSIONER DUGGINS:  How do ‑‑ one other comment if I may.  How are we going to get word of this out to the public where they can take advantage of this, to Dick’s point, and get rid of some of these old ‑‑

MS. STILES:  One of our primary contacts is our public phone bank for the people that are calling in that say, I’ve got an abandoned boat, I’ve got staff that are going to say ‑‑ they’re already ‑‑ they know that this is an issue that’s going to be available September 1st, so we have that.

We’ve also made presentations to the local counties that participate with boat titling and registration.  And we do have a presentation that’s tentatively scheduled with the Boating Trades Association in November.  So we would use our constituent groups, notify them, as well as our own staff that do the titling and registration.  And this is going to be on the website as well.

COMMISSIONER DUGGINS:  How about the sheriff’s, whatever the group is that manages all the sheriffs’ offices.  Can we somehow let them know that ‑‑ because I’m sure they’re tired of getting calls about it too, not knowing what to do, aren’t they, from what you said?

MS. STILES:  Most of them just say they don’t deal with the private property issue.

COMMISSIONER DUGGINS:  So wouldn’t that be good that they ‑‑ if they can now direct somebody that calls them to ‑‑

MS. STILES:  Absolutely.

COMMISSIONER DUGGINS:  I’d sure encourage us to try to do that, get word out.  Thanks.

COMMISSIONER FRIEDKIN:  Then I’ll place this on the Thursday Commission meeting agenda for public comment and action.  Thank you.

Number 7, implementation of legislation during the 82nd Texas Legislative session, House Bill 716, permits for aerial management of wildlife and exotic species.

MR. VACA:  Thank you, Mr. Chairman, Commissioners.  For the record I’m Scott Vaca, Assistant Chief of Wildlife Enforcement for Law Enforcement Division.  Today I’m presenting the proposed new rule to implement the provision of House Bill 716, which was passed by the Texas Legislature earlier this year.

Title 50 of the Code of Federal Regulations authorizes states to issue permits to manage wildlife and exotics from an aircraft.  The Department does currently issue aerial management permits pursuant to Texas Parks and Wildlife Code, Chapter 43, Subchapter G.  Currently no person may pay for the privilege to be a gunner under one of these permits.

House Bill 716 allows a qualified landowner or landowner’s authorized agent to contract for pay to the permittee to be a gunner in taking feral hogs or coyotes from a helicopter.  House Bill 716 also requires the Commission, by rule, to define qualified landowner or landowner’s agent.  The current rule prohibits a person from participating as a gunner, observer or pilot if that person has been convicted of a Class A Parks and Wildlife Code misdemeanor related to an aerial management permit within one year.

The proposed rule defines qualified landowner or landowner’s agent as a person who has not been convicted of, pleaded nolo contendere to, or received deferred adjudication for a Class A Parks and Wildlife Code misdemeanor or felony, excluding water safety violations, or a violation of the Lacey Act.  The proposed rule also removes the one-year limitation on considering Class A or higher Parks and Wildlife convictions as disqualifiers.

At this time I should point out that the preamble states that one of these convictions would not automatically disqualify a person from being a gunner.  This statement in the preamble is not accurate.  Staff intended for these convictions to automatically disqualify a person from participating as a gunner, and proposed rule clearly does disqualify a person with a Class A or higher Parks and Wildlife Code conviction or a Lacey Act conviction.

The proposed rule clarifies that a person holding an aerial management permit may only receive compensation from a qualified landowner or landowner’s authorized agent.  The proposed rule also clearly states that the permittee must possess a properly executed landowner’s authorization form prior to taking depredating feral hogs or coyotes from a helicopter.

As of this morning we’ve received five comments on this proposed rule.  The one comment in opposition gave a specific reason, and that reason was that the state should not try to ‑‑ should try not to manage people who are trying to remove feral hogs.  There was a couple of additional comments, but these were not germane to the proposed rule.  And that concludes my presentation.

COMMISSIONER HUGHES:  Now let me see if I understand it.  I mean what it’s saying is we can contract somebody to come in and get in a helicopter and shoot out ‑‑ we could pay somebody to come in and be the gunner and ‑‑ out of the helicopter.

MR. VACA:  A third party.  The landowner does not have to pay a third party who can act as an authorized agent, can pay the permittee directly, as long as they do the landowner’s authorization form and that’s on file with the Department prior to them doing that activity.  Right now the person being the gunner cannot pay, barter or exchange anything of value.  Now they can do an LOA form and pay the permittee directly, the permittee being the helicopter company.

COMMISSIONER FRIEDKIN:  Commissioner Scott.

COMMISSIONER SCOTT:  How long does it take to get that paperwork process they’re doing, what you just said about submitting for a permit and then doing a ‑‑

MR. VACA:  It varies based on work load, time of year, what other types of permits are being processed.  It can be anywhere from same day to three to five days.

COMMISSIONER SCOTT:  A bigger comment is, I’m not sure that it matters about checking on the gunner.  Me personally, I’m way more worried about the helicopter pilot than anybody.  I’m not going to hang out of a helicopter very much wanting to shoot if I don’t really know that pilot.  Right?

COMMISSIONER HOLT:  Right.  Right.

COMMISSIONER FRIEDKIN:  Commissioner Duggins.

COMMISSIONER DUGGINS:  Scott, on this 65.151(11) which defines qualified landowner or agent, where do we ‑‑ it says that that person can’t be ‑‑ can’t have been convicted, et cetera, et cetera.  But where do we say the gunner cannot be that?  You said it’s not intended to, but I don’t see where we’ve defined the gunner as someone who has not been convicted of, pleaded nolo contendere, et cetera.

COMMISSIONER FRIEDKIN:  The question is who else?

COMMISSIONER DUGGINS:  No, it’s where do we say the gunner may not have been convicted, pled, et cetera like we do for landowners?

MR. VACA:  The person ‑‑ that person, that gunner would be acting ‑‑ because they’re not the landowner, they would be acting as a qualified landowner’s agent, or landowner’s authorized agent.  So in effect, the gunner becomes the landowner’s authorized agent, they are part of the permit, then they are paying to conduct that activity.

MS. BRIGHT:  Ann Bright, General Counsel.  If you’ll look on page 165 at the very bottom, 65.152(c), it talks about contracting with a qualified landowner or landowner’s authorized agent, and that’s the defined term, who wishes to act as a gunner.

COMMISSIONER DUGGINS:  So gunner’s not a separate term, defined term?

MS. BRIGHT:  No, no.  But we could probably define it if we needed ‑‑ if you ‑‑

MR. SMITH:  Remember, a landowner’s agent could be either a gunner or an observer.  So they don’t automatically have to be a gunner.

COMMISSIONER DUGGINS:  Okay.

MR. SMITH:  So if they’re a qualified landowner’s agent, they could then pay to be an observer and not a gunner.  So we’re just limiting this to the landowner’s agent.  So you’ve got to be a landowner’s agent in order to qualify.

COMMISSIONER DUGGINS:  Well, I understand that.  But what I’m trying to avoid, or trying to make sure we’re not doing is somehow inadvertently creating a separate exception for gunner or observer as a different term than landowner’s agent, just to make sure the point Scott said is this is not intended to exempt a gunner or an observer from these restrictions.

MS. BRIGHT:  Well, I think the people on board are either going to be a gunner, an observer or the pilot, and that should take care of that.

MR. VACA:  And to point out, gunner is in the definition 65.151(5) as an individual who uses a firearm, tranquilizer gun or net gun to capture, take, shoot, or attempts to capture, take, or shoot wildlife or exotic animals from an aircraft.

COMMISSIONER DUGGINS:  So it is a separately defined term.  That’s what I was remembering.  That’s why I think we ought to expand 11 to say, Qualified owner or landowner’s ‑‑ qualified owner, landowner’s agent, observer or gunner may not have been convicted, et cetera.

COMMISSIONER HIXON:  Doesn’t the permit require that the gunner or the observer becomes the agent?

MR. VACA:  In effect that’s what this is doing.  The gunner is becoming a landowner’s agent so that they can pay the helicopter company directly.

COMMISSIONER HOLT:  And not have been convicted of.

COMMISSIONER FRIEDKIN:  Commissioner Scott.

COMMISSIONER SCOTT:  One more.  Well, and on Ralph’s comment, one other question I did have, seriously, I don’t know all you all’s book of rules that much.  What is a Class A misdemeanor or felony?  What did ‑‑ in other words, are we ‑‑ if somebody has a minor game violation, are they excluded, or what is a Class A misdemeanor I guess is my question?

MR. VACA:  Some examples would be taking wildlife resources without landowner consent, hunting at night, hunting deer with dogs ‑‑

COMMISSIONER SCOTT:  Okay.

MR. VACA:   ‑‑ waste of a big game animal.

COMMISSIONER SCOTT:  And just a minor ‑‑

MR. VACA:  They’re egregious violations.

COMMISSIONER SCOTT:   ‑‑ a bag ‑‑ two-thirds over a bag limit or something doesn’t fall under that ‑‑

MR. SMITH:  That’s a Class C.

COMMISSIONER SCOTT:  I was just curious about not making it so restrictive.

MR. VACA:  Also, violations of one of these aerial permits that is not just a record keeping violation, those are Class A misdemeanors.

COMMISSIONER SCOTT:  Okay.

COMMISSIONER FRIEDKIN:  Any other questions for Scott?

(No response.)

COMMISSIONER FRIEDKIN:  Thanks, Scott.  Appreciate it.  I’ll place this item on the Thursday Commission meeting agenda for public comment and action.

Chairman Holt, this committee has completed its business.

COMMISSIONER HOLT:  Thank you, Chairman Friedkin.

(Whereupon, at 11:25 a.m., the meeting was concluded.)

C E R T I F I C A T E

MEETING OF:
Texas Parks and Wildlife Commission
Regulations CommitteeLOCATION: Austin, Texas

DATE: August 24, 2011

I do hereby certify that the foregoing pages, numbers 1 through 71, 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.

                          9/02/11
(Transcriber)         (Date)

On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731


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