PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 65. WILDLIFE

The Texas Parks and Wildlife Commission in a duly noticed meeting on March 28, 2024, adopted amendments to §§65.10, 65.11, 65.24, 65.29, 65.33, 65.40, 65.42, 65.46, 65.48, and 65.64, concerning the Statewide Hunting Proclamation. The amendment to §65.64 is adopted with changes to the proposed text as published in the February 23, 2024, issue of the Texas Register (49 TexReg 973). The amendments to §§65.10, 65.11, 65.24, 65.29, 65.33, 65.40, 65.42, 65.46, and 65.48 are adopted without change and will not be republished.

The change to §65.64, concerning Turkey, alters subsection (b)(3)(D) to designate the counties listed in that subsection as the East Zone for turkey, which is intended to facilitate ease of reference. The change also re-orders the counties listed in subsection (b)(1)(C) to preserve alphabetical order, alters subsection (b)(3)(A) and (B) to reflect that Guadalupe County is in the Spring North Zone, and removes a reference to Wiliamson County in subsection (b)(3)(C) to reflect the fact that the season is being closed.

The amendment to §65.10, concerning Possession of Wildlife Resources, implements conforming changes to terminology with respect to references to pronghorn. In 2022, the department amended to §65.3, concerning Definitions, to define "pronghorn" as "pronghorn antelope (Antilocapra americana)." Although Parks and Wildlife Code, Chapter 63, designates the "pronghorn antelope" as a game species, the animal is not in fact a true antelope. Additionally, it is less cumbersome to simply refer to the animal as a pronghorn. Therefore, the definition was changed and the rules over time are being modified as the opportunity arises to eliminate the word "antelope" throughout the subchapter. The amendments to §65.11, 65.24, 65.33, and 65.40 also implement the change.

The amendment to §65.29, concerning Managed Lands Deer Program (MLDP), allows youth hunters on properties enrolled in the Harvest Option to harvest buck deer by firearm during the time period corresponding to the early youth-only hunting season established in the county regulations under §65.42, concerning Deer. During the current early youth-only hunting season, licensed hunters 16 years old and younger are allowed to take buck deer by firearm during the weekend preceding the first Saturday in November (under harvest rules in §65.42 for the county where the hunting takes place). On MLDP properties enrolled in the Conservation Option, MLDP permits are valid for the take of any deer by any lawful means (by any licensed hunter) from the Saturday closest to September 30 to the last day in February; however, on properties enrolled in the MLDP Harvest Option, only antlerless deer and unbranched antlered bucks can be taken by firearm between the Saturday closest to September 30 and the first Saturday in November. Therefore, during the weekend preceding the first Saturday in November, the harvest of buck deer by youth by firearm is lawful on all properties except those enrolled in the Harvest Option of the MLDP. The department has determined that because the upper limit of the harvest of deer on MLDP is set by the department, there is no reason for a hunting opportunity available on all other properties to be unavailable on MLDP Harvest Option properties during that same time period. The department has also determined that because the total harvest on MLDP properties is established and controlled by the department, there will be no negative biological consequences of allowing buck harvest by firearm by youth hunters, as it is simply a matter of redistributing utilization of a fixed number of tags on any given property. The department also notes that because the amendment to §65.42 adds a day to the early youth-only hunting season for deer, the amendment reflects that expanded harvest period length. The amendment also modifies subsection (f) to eliminate a provision regarding the effective date of a prior amendment. The provision was promulgated to provide for a transition period while the department implemented web-based and application-based administrative and reporting functions and is no longer necessary.

The amendment to 65.42, concerning Deer, consists of several components. The phrase "North Zone" is inserted at the beginning of paragraph (b)(2) to make clear the suite of counties and portions of counties to which the phrase refers.

The amendment to §65.42 also increases the number of "doe days" in 43 counties in the eastern half of the state. The department manages deer populations by the deer management unit (DMU) concept, which organizes the state into specific areas that share similar soil types, vegetative communities, wildlife ecology, and land-use practices. In this way, deer seasons, bag limits, and special provisions can be more effectively analyzed to monitor the efficacy of management strategies on deer populations within each DMU (although the familiar system of county boundaries and major highways to delineate various regulatory regimes continues to be employed). In some DMUs characterized by fragmented habitat, high hunting pressure, and large numbers of small acreages, the department protects the reproductive potential of the population by restricting the time during which antlerless deer may be taken, known colloquially as "doe days." Under current rule, there are five levels of doe harvest in Texas. In some counties, the harvest of does is restricted to harvest under MLDP tag only during the general season. In other counties (except on properties enrolled in the MLDP), doe harvest is allowed for either four, 16, or 23-plus days (a variable structure that allows antlerless harvest from the opening day of the general season until the Sunday following Thanksgiving). The most liberal doe harvest allows doe to be taken at any time during an open season. The department has determined that the 23-plus doe days structure can be implemented in 43 counties that currently have 16 doe days. Department population and harvest data indicate that deer densities are increasing within the affected DMUs and that antlerless harvest is less than half of the total harvest, which is resulting in a skewed sex ratio that is undesirable. The amendment is intended to provide additional hunting opportunity where possible within the tenets of sound biological management, address resource concerns such as increasing deer densities and habitat degradation, and to simplify regulations.

Finally, the amendment to §65.42 adds one day to the current early youth-only weekend season for deer. Based on harvest and population data, the department has determined that because the hunting pressure represented by persons 16 years of age and younger is slight, even at high rates of hunter success, the change will result in an insignificant biological impact. In addition, the amendment makes nonsubstantive grammatical corrections to improve readability.

The amendment to §65.46, concerning Squirrel: Open Season, Bag, and Possession Limits, adds one day to the current early youth-only weekend season for squirrel. Based on harvest and population data, the department has determined that because the hunting pressure represented by persons 16 years of age and younger is slight, even at high rates of hunter success, the change will result in an insignificant biological impact.

The amendment to §65.48, concerning Desert Bighorn Sheep: Open Season and Annual Bag Limit, modifies the open season. Under current rule, the season runs from September 1 through July 31. The season is closed in August as a precautionary measure because department biologists historically have conducted aerial surveys of bighorn populations at that time. However, the department has revised its aerial survey protocol for safety reasons, shifting the survey period to October 1 through November 14 when flight conditions are more favorable due to cooler temperatures. The amendment establishes an open season to run November 15 - September 30.

The amendment to §65.64, concerning Turkey, consists of several actions. First, the amendment eliminates regulatory distinctions regarding identification of subspecies of turkeys, which the department has determined is unnecessary, as the distribution of the various subspecies on the landscape is conducive to the aggregate bag limits currently in effect. Therefore, current subsection (c), which is specific to Eastern turkey (for which there is no fall season), is no longer necessary and the appropriate components can be relocated into the portion of subsection (b) addressing spring turkey seasons. The amendment will simplify regulations, enhance administration and enforcement, and will not result in depletion or waste.

The amendment to §65.64 also closes the fall season, shortens the spring season, and reduces the bag limit east of Interstate Highway 35 in Comal, Hays, Hill, McLennan, and Travis counties, and north of Interstate Highway 10 in Guadalupe County. The current spring season runs from the Saturday closest to April 1 for 44 days and the bag limit is four turkeys, gobblers or bearded hens. The amendment replaces that with a season to run from April 1 - 30 and implements a bag limit of one turkey, gobblers only. Urban and suburban development, along with agricultural practices common along and east of Interstate 35 and north of Interstate 10, have resulted in habit loss and fragmentation to the extent that the turkey populations in those areas are no longer capable of sustaining potential harvest at the levels allowed under current rule. Moreover, hen harvest should be eliminated to maximize reproductive potential for the populations that do remain, which will allow for viable turkey populations in those remaining areas of suitable habitat. Similarly, the amendment closes the fall season in Pecos and Terrell counties, and alters the spring season dates in Brewster, Jeff Davis, Pecos, and Terrell counties by implementing a shorter season, reducing the bag limit, and restricting the bag composition to gobblers only. The current spring season in those counties runs from the Saturday closest to April 1 for 44 days and the bag limit is four turkeys, gobblers or bearded hens. Department monitoring efforts continue to indicate significant population declines in those counties and the department has determined that populations in those areas are no longer capable of sustaining potential harvest at the levels allowed under current rule. Moreover, hen harvest should be eliminated to maximize reproductive potential for the populations that do remain, which will allow for viable turkey populations in those remaining areas of suitable habitat.

The amendment to §65.64 also closes the spring season south of U.S. Highway 82 in Bowie, Fannin, Lamar, and Red River counties to protect turkeys being stocked in neighboring counties while viable populations are being established. Similarly, the amendment would close the spring season in Milam County and east of Interstate Highway 35 in Bell and Williamson counties to protect stocked turkeys as part of a restoration effort, which is expected to take up to five years to complete.

The amendment to §65.64 also implements a statewide mandatory harvest reporting requirement for all harvested wild turkeys. The department has historically utilized data obtained from mail-in surveys of turkey hunters to inform management decisions; however, response rates to the surveys have declined to a level that severely reduces the statistical reliability and usefulness of that data. Harvest data is an important component of turkey population management and recent research in Texas has recommended the implementation of mandatory harvest reporting to better monitor wild turkey populations. The department currently requires the electronic reporting of all turkey harvest in counties with a one-gobbler bag limit, and that data is invaluable to the long-term monitoring and management of wild turkey populations in Texas. Additionally, the amendment adds nonsubstantive language where necessary to clarify that the rules apply to counties and portions of counties.

Finally, the amendment to §65.64 adds one day to the current early youth-only weekend season for turkey. Based on harvest and population data, the department has determined that because the hunting pressure represented by persons 16 years of age and younger is slight, even at high rates of hunter success, the change will result in an insignificant biological impact.

The department received seven comments opposing adoption of the proposed amendment to §65.29 that allows youth on certain MLDP properties to take bucks with a firearm during the early youth-only season. Of those comments, three provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that the rule will create a disadvantage for archery hunters on properties neighboring affected MLDP properties and will likely lead to adults using MLDP tags to harvest bucks with a rifle during archery only seasons. The department disagrees with the comment and responds that under current rule, MLDP properties enrolled in the Harvest Option are the only properties in the state where youth cannot legally take buck deer by firearm during the early youth season, which means that all archery hunting is already taking place on and adjacent to properties where youth can already take buck deer by firearm. The rule as adopted is intended to eliminate that unintended exclusion and the department is confident that anyone committing the offense of hunting under the license of another will be detected and prosecuted. No changes were made as a result of the comment.

One commenter opposed adoption and stated that youth hunting seasons are the perfect time for the adults to cheat the system. The department disagrees with the comment and responds that there is no evidence to suggest that youth seasons are being abused and urges anyone with knowledge of wildlife offenses to report those offenses to the department via the Operation Game Thief Program, which offers cash rewards and anonymity to any person reporting wildlife violations. No changes were made as a result of the comment.

The department received nine comments opposing adoption of the portion of the proposed amendment to §65.42 that expanded "doe days" in 43 East Texas counties. Of those comments, five provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

Two commenters opposed adoption and stated in various ways that overharvest is occurring in the affected counties because the number of small properties continues to increase and instead of paying to be a member of a hunting cooperative, people just wait for "doe days" and then harvest an excessive amount of antlerless deer in addition to overharvesting bucks during the general season. The department disagrees with the comment and responds that not only is overharvest of antlerless deer not occurring in the affected counties, the harvest of antlerless deer is significantly suboptimal, which negatively affects sex ratios and habitat quality. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the harvest of antlerless deer should only be allowed by permit on acreages larger than 100 acres. The department disagrees with the comment and responds that the department's rules governing the harvest of antlerless deer at any given location reflect population, habitat, and land use indices at landscape DMU scale. Individual tracts may or may not reflect these generalized parameters, but deer populations and harvest in general is managed at the DMU level. No changes were made as a result of the comment.

One commenter opposed adoption and stated that it is impossible to manage for trophy bucks on tracts of 25 acres or less. The department agrees with the comment and responds that the reality of wildlife behavior is independent of human conventions such as real estate ownership; the simple fact is that 25 acres is not enough to sustain a resident population for trophy management purposes. The department recommends that owners of smaller acreages band together to form wildlife management cooperatives that can produce desirable bucks on aggregate continuous acreages and distribute harvest opportunity by common agreement. No changes were made as a result of the comment.

One commenter opposed adoption and stated that because of land fragmentation the department should shorten the season, lower the bag limit on antlerless deer, and "make east TX one buck, period." The department disagrees with the comment and responds that land fragmentation is not exerting any effects that would warrant reducing the season length or bag limits in the affected counties; in fact, population indices strongly support increase harvest of antlerless deer and there is no biological reason to restrict buck harvest. No changes were made as a result of the comment.

One commenter opposed adoption and stated that rule changes should be based on deer survey and harvest data and the sex ratio (antlerless to buck) on the commenter's property is 11:1, not the 1:1 ratio cited by the department. The department disagrees with the comment and responds that all harvest regulations are based on long-term, systematically collected biological data in addition to harvest reporting data and data-driven estimates of hunting pressure within a DMU and do not necessarily reflect the conditions on individual properties within a DMU. In any case, the department's justification for change was to expand hunting opportunities for antlerless harvest in a portion of the state where a skewed sex ratio of excess antlerless deer has led to increasing deer densities. The department also responds that neither a 1:1 or 11:1 sex ratio would be desirable in these DMUs. No changes were made as a result of the comment.

The department received 80 comments supporting adoption of the portion of the proposed amendment to §65.42 that increased the number of "doe days."

The department received two comments opposing adoption of the proposed amendment to §65.48 that altered season dates for desert bighorn sheep. Neither commenter offered a reason or rationale for opposing adoption.

The department received 42 comments supporting adoption of the proposed amendment to §65.48 that affects season dates for desert bighorn sheep.

The department received 18 comments opposing adoption of the portion of the proposed amendment to §65.64 that requires harvest reporting for wild turkey. Of those comments, 11 provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

Four commenters opposed adoption and stated the provision was government overreach, with one commenter adding that it was "without a stated need or desired result." The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 62, the department is required to conduct scientific studies and investigations of all species of game animals, game birds, and aquatic animal life to determine supply, economic value, environments, breeding habits, sex ratios, and effects of any factors or conditions causing increases or decreases in supply. Chapter 62 also authorizes the Texas Parks and Wildlife Commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state. As noted in the preamble to the proposed rule, the department is concerned about turkey populations in a variety of contexts, from steady population declines in certain areas to restoration efforts to population status in general. The traditional and historical method of obtaining harvest data (voluntary mail-in surveys of licensed hunters), which the department uses in conjunction with population and other data to guide management decisions, is no longer efficacious due to very low response rates that undermine their statistical validity and utility. The department believes that mandatory harvest reporting is the best way to obtain that data and that hunters should support that effort as it serves one and only one purpose: to aid the department in fulfilling its obligation to manage and conserve wildlife for enjoyment by the public. Therefore, the department believes, having articulated both the need and the expected result in the context of clear statutory authority, that the rule does not constitute government overreach. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the rule is not needed. The department disagrees with the comment and responds that the need for the rule was clearly stated in the preamble to the proposed rule as well as in numerous commission meetings and press releases. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "Rio Grande Turkeys are in abundance. This should be limited to Easterns." The department disagrees with the comment and responds that, in general, the population status of the Rio Grande subspecies of turkey can be described as healthy; however, there are more than a few areas of the state where there are indications of population decline. Those trends require investigation, a critical component of which is accurate harvest data, which the department, as noted, no longer is able to obtain via mail-in surveys. Thus, mandatory harvest reporting is required, as it already is in certain counties. No changes were made as a result of the comment.

One commenter opposed adoption and stated that in counties "without known population issues this isn't necessary" and that "even when there are localized population drops it most likely isn't a county wide issue." The department disagrees with the comment and responds that, as stated in the preamble to the proposed rule, the department is concerned about specific turkey populations and turkey populations in general, particularly in light of the declining relevance of current harvest survey methodologies. The lack of reliable data frustrates efficacious management because without reliable data the department is unable to detect indicators of worsening population trends before they increase in severity. The department also notes the assumption that meta-population status is unrelated to local population status is erroneous, because a host of factors may be at work, many of them at landscape/regional scale. In any case, the department manages turkey populations at ecosystem scale; the regulations governing turkey harvest are implemented in the form of county regulations in order to facilitate compliance and enforcement. No changes were made as a result of the comment.

One commenter opposed adoption and stated that another "mandatory regulation" is not needed and the number of hunters is dwindling because the department is destroying the pleasure of hunting with regulations. The department disagrees with the comment and responds that the need for and positive effects of the scientific regulation of recreational hunting has been definitively demonstrated for over a century, and there is no valid evidence to suggest that interest in hunting is measurably affected by hunting regulations, although it must be noted that the department believes it is important to impose regulations only when necessary and in the least troublesome way possible. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department is crazy if it believes it can "manage the wildlife on private lands better than the landowner, who is more vested and caring than the state government (TPWD)." The department disagrees that stewardship is a contest or competition indicative of care and concern and responds that the rule is intended to generate better data that enables more effective management, which in turn benefits those who provide and utilize hunting opportunity. No changes were made as a result of the comment.

One commenter opposed adoption and stated "Making it mandatory rather than incentivizing the reporting." The department infers that the commenter believes that some sort of reward or benefit system for reporting turkey harvest would be as or more effective than mandatory reporting. The department disagrees with the comment on that basis and responds that creating a material incentive for reporting turkey harvest would result in skewed or biased data, because it would generate data related to actions in expectation of benefit, rather than creating a randomized dataset, which is a critical qualification for usefulness in scientific inquiries. No changes were made as a result of the comment.

One commenter opposed adoption and stated "The harvest of turkeys has no bearing on quotas without a population survey of an area. If TPWD is issuing 4 Turkey tags they should have data already to back up the tags allotted to hunters and should be safe based on the population data." The department infers that the commenter is opposed to adoption on the basis that the department is not basing turkey seasons and bag limits on population data. The department disagrees with the comment on that basis and responds that all turkey seasons and bag limits are established on the best available population, harvest, and habitat survey data. The rule as adopted is in fact necessary to improve harvest data used by the department to inform management decisions. No changes were made as a result of the comment.

The department received 59 comments supporting adoption of the portion of the proposed amendment to §65.64 that requires reporting of all turkey harvest.

The department received 19 comments opposing adoption of the portion of the proposed amendment to §65.64 that eliminates regulatory distinctions with respect to turkey subspecies. Of those comments, nine provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that "[T]here should be a distinction between the harvesting of sub-species." The department disagrees with the comment and responds that the rule as adopted would have no measurable negative effects on turkey subspecies because there is only one county in the state where more than one subspecies of turkey is known to exist. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Two different turkeys Two different populations." The department infers that the commenter believes the rule will result in department management of turkey populations without regard to subspecies. The department disagrees with the comment on that basis and responds that because there is very little overlap between ranges of turkey subspecies, turkey management is by default management of subspecies. No changes were made as a result of the comment.

Six commenters opposed adoption and stated that hunters should know the difference between subspecies. The department disagrees that it is necessary to know the differences between turkey subspecies, as hunters are extremely unlikely to encounter more than one subspecies anywhere in the state other than Grayson County, which is the only place that has occurred. No changes were made as a result of the comments.

One commenter opposed adoption and stated the rule could result in overharvest of Eastern turkey. The department disagrees with the comment and responds, as noted earlier, that it is extremely unlikely to find more than one turkey subspecies in any given location in the state. The East Zone consists of counties where Eastern turkeys have been stocked and Rio Grande turkey do not occur. The bag limit is one bird per hunter per year, all counties combined, for which there will be one tag on the hunting license, which makes overharvest of Eastern turkey highly unlikely. No changes were made as a result of the comment.

The department received 55 comments supporting adoption of the portion of the proposed amendment to §65.64 that eliminated regulatory distinctions for turkey subspecies.

The department received 14 comments opposing adoption of the portion of the proposed amendment to §65.64 that closes the season south of U.S. Hwy 82 in Fannin, Lamar, Red River, and Bowie counties for restoration purposes. Of those comments, five provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that the fall season should be closed. The department disagrees with the comment and responds that there is no fall season in the affected counties. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "[P]rivate land should be excluded from government regulations regulating Natural resources on the private land." The department disagrees with the comment and responds that under the Parks and Wildlife Code, the wildlife resources of the state are the property of the people, and under Article 1, Section 34 of the Texas Constitution, the taking of those resources is subject to laws and regulations governing the conservation of those resources. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Public land owners need to also not have the ability to harvest a turkey for this to work." The department infers that the commenter believes that the closures should affect public lands, which they do. No changes were made as a result of the comment.

One commenter opposed adoption and stated that instead of taking hunting opportunity away, the department should "[D]o something that Will actually make an impact in turkey numbers. Loss of habitat and the increase in nest predators have killed the turkey population in that area. Do some habitat improvements or start a bounty for predators." The department disagrees with the comment and responds that the department does not have the ability to dictate to private landowners how they use their land and instead provides technical information and guidance on habitat management to private landowners upon request. The department also responds that predators play a valuable role in healthy ecosystems and are not believed to be a significant contributor to the extirpation of turkeys in East Texas. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Reduce harvest numbers versus eliminate harvest." The department infers that the commenter believes a reduction in harvest would eliminate the need for season closure. On that basis the department disagrees with the comment and responds that reducing the bag limit, besides being impossible (since the bag limit is one turkey) will have no impact, since there are so few turkeys in the affected area and the point of the rule is to prevent them from being killed while they repopulate. No changes were made as a result of the comment.

The department received 43 comments supporting adoption of the portion of the proposed amendment to §65.64 that closes the season south of U.S. Hwy 82 in Fannin, Lamar, Red River, and Bowie counties for restoration purposes.

The department received 13 comments opposing adoption of the portion of the proposed amendment to §65.64 that closes all seasons in Milam County and portions of Bell and Williamson counties for purposes of restoration efforts. Of those comments, five provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated the need for data in support of "the restriction of anyone's hunting rights." The department disagrees that the rule affects anyone's right to hunt and that the closure is necessary to optimize the chances of success for efforts to restore turkeys in areas that the department has determined that suitable habitat exists. No changes were made as a result of the comment.

One commenter opposed adoption and stated that restoration efforts should take place but private landowners should be educated and asked to avoid the taking of turkeys during either specific season(s), not legally barred from it. The department disagrees with the comment and responds that restoration is the process of establishing viable populations in locations of suitable habitat. For that to be successful, transplanted birds must have a minimum of three to five years of undisturbed opportunity to acclimate to the environment and establish the feeding, nesting, and breeding behaviors necessary for population increase and establishment. For that reason, the department will not stock on private lands unless participating landowners agree not to expose stocked populations to hunting pressure. Because expanding populations by definition must colonize the adjoining landscape for restoration to succeed, the department also temporarily closes the season until surveys indicate that a viable population exists. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "make it a drawn tag, and allocate accordingly." The department disagrees with the comment and responds that restoration efforts are optimized by the temporary abatement of all hunting pressure in order to allow stocked populations to become established as quickly as possible. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "[S]top taking away from the hunters and actually do something to re build [sic] the population. Habitat improvements and predator control. Control burns anything." The department disagrees with the comment and responds, as noted earlier, that the department's stocking efforts are conducted with the ultimate goal of providing hunting opportunity where none presently exists but conditions are potentially conducive to establishment of huntable populations; therefore, no hunting opportunity is being taken away from anyone. The department also responds that it does not have the statutory authority to dictate habitat management practices on private property and instead provides technical information and guidance on habitat management to private landowners upon request. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Reduce harvest numbers versus eliminate harvest." The department infers that the commenter believes a reduction in harvest would eliminate the need for season closure. On that basis the department disagrees with the comment and responds that reducing the bag limit, besides being impossible (since the bag limit is one turkey) will have no impact, since there are so few turkeys in the affected area and the point of the rule is to prevent them from being killed while they repopulate. No changes were made as a result of the comment.

The department received 44 comments supporting adoption of the portion of the proposed amendment to §65.64 that closes all seasons in Milam County and portions of Bell and Williamson counties for purposes of restoration efforts.

The department received 15 comments opposing adoption of the portion of the proposed amendment to §65.64 that reduces the season length and annual bag limit for turkeys in all counties with an open season west of the Pecos River and east of I-35/north of I-10. Of those comments, two provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that in counties "without known population issues this isn't necessary" and that "even when there are localized population drops it most likely isn't a county wide issue." The department disagrees with the comment and responds that, as stated in the preamble to the proposed rule, the department is concerned about specific turkey populations and turkey populations in general, particularly in light of the declining relevance of current harvest survey methodologies. The lack of reliable data frustrates efficacious management because without it the department is unable to detect indicators of worsening population trends before they increase in severity. The department also notes the assumption that meta-population status is unrelated to local population status is erroneous, because a host of factors may be at work, many of them at landscape/regional scale. In any case, the department manages turkey populations at ecosystem scale; the regulations governing turkey harvest are implemented in the form of county regulations in order to facilitate compliance and enforcement. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "more information about county specific numbers should be reviewed and studied before making such a MASSIVE change in the regs. This is a poor reaction without much data backing it up." The department disagrees with the comment and responds that the rule as adopted is supported by significant systematic, scientifically valid, data collected by the department over many years and is necessary to manage and conserve the resource. No changes were made as a result of the comment.

The department received 41 comments supporting adoption of the portion of the proposed amendment to §65.64 that reduces the season length and annual bag limit for turkeys in all counties with an open season west of the Pecos River and east of I-35/north of I-10.

The department received nine comments opposing adoption of the portion of the proposed amendment to §65.42 and amendments to §65.46 and 65.64 that expand the current youth-only seasons by one day. Of those comments, three provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that "[T]he kids can wait one extra day" and in light of concerns with turkey populations, additional opportunity should not be provided to persons other than "the people actually footing the bill." The department disagrees with the comment and responds that the purpose of youth hunting seasons in to provide a special mentoring and fostering opportunity for adults and young hunters. The department also responds that because of the comparatively light resource impacts associated with youth-only seasons, there is no resource concern with respect to adding an extra day to the current youth-only seasons. No changes were made as a result of the comment.

One commenter opposed adoption and stated that providing an extra day of youth-only hunting opportunity could result in "conflicts with school requirements." The department disagrees with the comment and responds that participation in youth-only hunting seasons is voluntary. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the additional day of youth hunting opportunity "[w]ill only allow the outlaws to get a jump on the people that follow the law." The department disagrees with the comment and responds that there is no evidence to suggest that youth seasons are being abused, and urges anyone with knowledge of wildlife offenses to report those offenses to the department via the Operation Game Thief Program, which offers cash rewards and anonymity to any person reporting wildlife violations. No changes were made as a result of the comment.

One person opposed adoption and stated that there should be no fall turkey seasons. The department disagrees with the comment and responds that the department required by statute to preserve and conserve the resources of the state while preventing depletion and waste of those resources. No changes were made as a result of the comment.

The department received 78 comments opposing adoption of the portion of the proposed amendment to §65.42 and amendments to §65.46 and 65.64 that expand the current youth-only seasons by one day.

The department received four comments opposing adoption of the proposed amendments to various sections containing nomenclature for pronghorns. Of those comments, two articulated a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated, "it is a pronghorn antelope." The department disagrees with the comment and responds that the organism in question is not a true antelope. No changes were made as a result of the comment.

One commenter opposed adoption and stated that if people are confused, they shouldn't be allowed to hunt. The department disagrees that there is confusion as to what organism is being referred to and the amendment is simply intended to eliminate inaccurate nomenclature and facilitate ease of reference.

The department received 44 comments supporting adoption of the proposed amendments to various sections containing nomenclature for pronghorns.

One commenter opposed adoption of the entirety of the rulemaking and stated that government regulations should not exist on privately owned land. The department disagrees with the comment and responds that under the Parks and Wildlife Code, the commission is required to manage and conserve the wildlife resources of the state for the enjoyment of the citizens and is authorized to promulgate rules governing the pursuit, take, and possession of wildlife resources in any location necessary to accomplish that purpose. No changes were made as a result of the comment.

SUBCHAPTER A. STATEWIDE HUNTING PROCLAMATION

DIVISION 1. GENERAL PROVISIONS

31 TAC §§65.10, 65.11, 65.24, 65.29, 65.33

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 22, 2024.

TRD-202403255

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: August 11, 2024

Proposal publication date: February 23, 2024

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

31 TAC §§65.40, 65.42, 65.46, 65.48, 65.64

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

§65.64.Turkey.

(a) The annual bag limit for turkey (all subspecies), in the aggregate, is four, only one of which may be from a county listed in subsection (b)(3)(D) of this section.

(b) The open seasons and bag limits for turkey shall be as follows.

(1) Fall seasons and bag limits:

(A) The counties listed in this subparagraph are in the Fall South Zone. In Aransas, Atascosa, Bee, Calhoun, Cameron, Dimmit, Duval, Frio, Goliad, Gonzales, Hidalgo, Jim Hogg, Jim Wells, Karnes, Kinney (south of U.S. Highway 90), LaSalle, Live Oak, Maverick, McMullen, Medina (south of U.S. Highway 90), Nueces, Refugio, San Patricio, Starr, Uvalde (south of U.S. Highway 90), Val Verde (south of a line beginning at the International Bridge and proceeding along Spur 239 to U.S. Hwy. 90 and thence to the Kinney County line), Webb, Wilson, Zapata, and Zavala counties, there is a fall general open season.

(i) Open season: first Saturday in November through the third Sunday in January.

(ii) Bag limit: four turkeys, gobblers or bearded hens.

(B) In Brooks, Kenedy, Kleberg, and Willacy counties, there is a fall general open season.

(i) Open season: first Saturday in November through the last Sunday in February.

(ii) Bag limit: four turkeys, either sex.

(C) The counties and portions of counties listed in this subparagraph are in the Fall North Zone. In Archer, Armstrong, Bandera, Baylor, Bell (west of Interstate Highway 35), Bexar, Blanco, Borden, Bosque, Briscoe, Brown, Burnet, Callahan, Carson, Childress, Clay, Coke, Coleman, Collingsworth, Comal (west of Interstate Highway 35), Comanche, Concho, Cooke, Coryell, Cottle, Crane, Crockett, Crosby, Dawson, Denton, Dickens, Donley, Eastland, Ector, Edwards, Erath, Fisher, Floyd, Foard, Garza, Gillespie, Glasscock, Gray, Hall, Hamilton, Hardeman, Hartley, Haskell, Hays (west of Interstate Highway 35), Hemphill, Hill (west of Interstate Highway 35), Hood, Howard, Hutchinson, Irion, Jack, Johnson, Jones, Kendall, Kent, Kerr, Kimble, King, Kinney (north of U.S. Highway 90), Knox, Lampasas, Lipscomb, Llano, Lynn, Martin, Mason, McCulloch, McLennan (west of Interstate Highway 35), Medina (north of U.S. Highway 90), Menard, Midland, Mills, Mitchell, Montague, Moore, Motley, Nolan, Ochiltree, Oldham, Palo Pinto, Parker, Potter, Randall, Reagan, Real, Roberts, Runnels, San Saba, Schleicher, Scurry, Shackelford, Somervell, Stephens, Sterling, Stonewall, Sutton, Swisher, Tarrant, Taylor, Throckmorton, Tom Green, Travis (west of Interstate Highway 35), Upton, Uvalde (north of U.S. Highway 90), Val Verde (north of a line beginning at the International Bridge and proceeding along Spur 239 to U.S. Hwy. 90 and thence to the Kinney County line), Ward, Wheeler, Wichita, Wilbarger, Williamson (west of Interstate Highway 35), Wise, and Young counties, there is a fall general open season.

(i) Open season: first Saturday in November through the first Sunday in January.

(ii) Bag limit: four turkeys, either sex.

(2) Archery-only season and bag limits. In all counties where there is a general fall season for turkey there is an open season during which turkey may be taken only as provided for in §65.11(2) and (3) of this title (relating to Lawful Means).

(A) Open season: from the Saturday closest to September 30 for 35 consecutive days.

(B) Bag limit: in any given county, the annual bag limit is as provided by this section for the fall general season in that county.

(3) Spring season and bag limits.

(A) The counties and portions of counties listed in this subparagraph are in the Spring North Zone. In Archer, Armstrong, Bandera, Baylor, Bell (west of Interstate Highway 35), Bexar, Blanco, Borden, Bosque, Briscoe, Brown, Burnet, Callahan, Carson, Childress, Clay, Coke, Coleman, Collingsworth, Comal (west of Interstate Highway 35), Comanche, Concho, Cooke, Coryell, Cottle, Crane, Crockett, Crosby, Dawson, Denton, Dickens, Donley, Eastland, Ector, Edwards, Ellis (west of Interstate Hwy. 35), Erath, Fisher, Floyd, Foard, Garza, Gillespie, Glasscock, Gray, Guadalupe (south of Interstate Highway 10), Hall, Hamilton, Hardeman, Hartley, Haskell, Hays (west of Interstate Highway 35), Hemphill, Hill (west of Interstate Highway 35), Hood, Howard, Hutchinson, Irion, Jack, Johnson, Jones, Kendall, Kent, Kerr, Kimble, King, Kinney (north of U.S. Hwy. 90), Knox, Lampasas, Lipscomb, Llano, Lynn, Martin, Mason, McCulloch, McLennan (west of Interstate Highway 35), Medina (north of U.S. Hwy. 90), Menard, Midland, Mills, Mitchell, Montague, Moore, Motley, Nolan, Ochiltree, Oldham, Palo Pinto, Parker, Potter, Randall, Reagan, Real, Roberts, Runnels, San Saba, Schleicher, Scurry, Shackelford, Somervell, Stephens, Sterling, Stonewall, Sutton, Swisher, Tarrant, Taylor, Throckmorton, Tom Green, Travis (west of Interstate Highway 35), Upton, Uvalde (north of U.S. Hwy. 90), Val Verde (north of a line beginning at the International Bridge and proceeding along Spur 239 to U.S. Hwy. 90 and thence to the Kinney County line), Ward, Wheeler, Wichita, Wilbarger, Williamson (west of Interstate Highway 35), Wise, and Young counties, there is a spring general open season.

(i) Open season: Saturday closest to April 1 for 44 consecutive days.

(ii) Bag limit: four turkeys, gobblers or bearded hens.

(B) The counties and portions of counties listed in this subparagraph are in the Spring South Zone. In Aransas, Atascosa, Bee, Brooks, Calhoun, Cameron, DeWitt, Dimmit, Duval, Frio, Goliad, Gonzales, Hidalgo, Jim Hogg, Jim Wells, Karnes, Kenedy, Kinney (south of U.S. Hwy. 90), Kleberg, LaSalle, Live Oak, Maverick, McMullen, Medina (south of U.S. Hwy. 90), Nueces, Refugio, San Patricio, Starr, Uvalde (south of U.S. Hwy. 90), Val Verde (south of a line beginning at the International Bridge and proceeding along Spur 239 to U.S. Hwy. 90 and thence to the Kinney County line), Victoria, Webb, Willacy, Wilson, Zapata, and Zavala counties, there is a spring general open season.

(i) Open season: Saturday closest to March 18 for 44 consecutive days.

(ii) Bag limit: four turkeys, gobblers or bearded hens.

(C) In Bastrop, Brewster, Caldwell, Colorado, Comal (east of Interstate Highway 35), Fayette, Guadalupe (north of I-10), Hays (east of Interstate Highway 35), Hill (east of Interstate Highway 35), Jackson, Jeff Davis, Lavaca, Lee, Matagorda, McLennan (east of Interstate Highway 35), Pecos, Terrell, Travis (east of Interstate Highway 35), and Wharton counties, there is a spring general open season.

(ii) Bag limit: one turkey, gobblers only.

(D) The counties and portions of counties listed in this subparagraph are in the East Zone. In Bowie (north of U.S. 82), Cass, Fannin (north of U.S. 82), Grayson, Jasper (other than the Angelina National Forest), Lamar (north of U.S. 82), Marion, Nacogdoches, Newton, Polk, Red River (north of U.S. 82), and Sabine counties, there is a spring general open season.

(i) Open season: from April 22 through May 14.

(ii) Bag limit: one turkey, gobbler only.

(iii) In the counties listed in this subsection:

(I) it is unlawful to hunt turkey by any means other than a shotgun or lawful archery equipment; and

(II) it is unlawful for any person to take or attempt to take turkeys by the aid of baiting, or on or over a baited area.

(4) Special Youth-Only Seasons. Only licensed hunters 16 years of age or younger may hunt during the seasons established by this subsection.

(A) There shall be a special youth-only fall general hunting season in all counties where there is a fall general open season.

(i) open season: the Friday, Saturday, and Sunday immediately preceding the first Saturday in November and from the Monday immediately following the close of the general open season for 14 consecutive days.

(ii) bag limit: as specified for individual counties in paragraph (1) of this subsection.

(B) There shall be special youth-only spring general open hunting seasons for turkey in the counties listed in paragraph (3)(A) and (B) of this subsection.

(i) open seasons:

(I) the weekend (Saturday and Sunday) immediately preceding the first day of the general open spring season; and

(II) the weekend (Saturday and Sunday) immediately following the last day of the general open spring season.

(ii) bag limit: as specified for individual counties in paragraph (3) of this subsection.

(c) Except as provided by §65.10 of this title for turkeys harvested under a digital license issued pursuant to §53.3(a)(12) of this title, a valid license with digital tags under §53.4 of this title, or a valid digital license under §53.5(a)(3) of this title, all harvested turkeys must be registered via the department's internet or mobile application within 24 hours of the time of kill.

(d) In all counties or portions of counties for which an open season is not provided under subsection (b) of this section, the season is closed for hunting turkey.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 22, 2024.

TRD-202403256

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: August 11, 2024

Proposal publication date: February 23, 2024

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

DIVISION 2. CHRONIC WASTING DISEASE - COMPREHENSIVE RULES

31 TAC §§65.90, 65.92, 65.98, 65.99

The Texas Parks and Wildlife Commission in a duly noticed meeting on May 23, 2024 adopted amendments to 31 TAC §§65.90, 65.92, 65.98, and 65.99, concerning Disease Detection and Response, without changes to the proposed text as published in the April 19, 2024, issue of the Texas Register (49 TexReg 2430). The text of the rules will not be republished.

CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle and commonly known as "Mad Cow Disease"), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

Much remains unknown about CWD, although robust efforts to increase knowledge are underway in many states and countries. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. Currently, scientific evidence suggests that CWD has zoonotic potential; however, no confirmed cases of CWD have been found in humans. Consequently, both the Centers for Disease Control and Prevention and the World Health Organization strongly recommend testing animals taken in areas where CWD exists, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to certain species of cervids and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant.

The department has engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD has been confirmed. The purpose of those CWD zones is to determine the geographic extent and prevalence of the disease while containing it by limiting the unnatural movement of live CWD-susceptible species as well as the movement of carcass parts.

The department's response to the emergence of CWD in captive and free-ranging populations is guided by the department's CWD Management Plan (Plan) https://tpwd.texas.gov/huntwild/wild/diseases/cwd/plan.phtml. Developed in 2012 in consultation with the Texas Animal Health Commission (TAHC), other governmental entities and conservation organizations, and various advisory groups consisting of landowners, hunters, deer managers, veterinarians, and epidemiologists, the Plan sets forth the department's CWD management strategies and informs regulatory responses to the detection of the disease in captive and free-ranging cervid populations in the State of Texas. The Plan is intended to be dynamic; in fact, it must be so in order to accommodate the growing understanding of the etiology, pathology, and epidemiology of the disease and the potential management pathways that emerge as it becomes better understood through time. The Plan proceeds from the premise that disease surveillance and active management of CWD once it is detected are critical to containing it on the landscape.

As noted previously in this preamble, the department has been engaged in a long-term effort to stem the spread of CWD; however, by 2021 it was apparent that more robust measures were warranted because CWD was still being detected in additional deer breeding facilities, as well as on multiple release sites associated with CWD-positive deer breeding facilities. The commission adopted those rules, which require higher rates of testing, ante-mortem (live-animal) testing of breeder deer prior to release, and enhanced recordkeeping and reporting measures, in December of 2021 (46 TexReg 8724).

Following the implementation of more efficacious testing requirements, an unprecedented increase in CWD detections occurred. Since 2021, CWD has been detected in 27 deer breeding facilities, two release sites associated with CWD-positive deer breeding facilities, and two free-ranging deer in areas where CWD had not been previously detected. Department records indicate that within the last five years those breeding facilities transferred over 7,000 deer to other breeding facilities, release sites, and Deer Management Permit (DMP) sites. All those locations are therefore directly connected to the CWD-positive facilities and are subsequently of epidemiological concern. Additionally, approximately 287 deer breeding facilities received deer from one or more of the directly connected breeding facilities, which means those facilities (referred to as "Tier 1" facilities) are indirectly connected to the positive facilities and are also of epidemiological concern because they have received exposed deer that were in a trace-out breeding facility.

Because of this rapid explosion in epidemiological linkages between deer breeding facilities and associated release sites, the department became concerned about the excessive numbers of deer breeders continuing to be affected by inter-facility transfers, and subsequently determined that additional testing measures could increase the probability of detecting CWD in breeding facilities where it exists before it could be spread to additional breeding facilities and associated release sites. In addition to enhancing the department's ability to contain CWD where it is discovered, the additional testing measures also advanced the agency's desire to identify methods to provide relief to the regulated community without compromising the agency's statutory duty to protect and conserve public wildlife resources. Continuing along that trajectory, the rules as adopted implement a number of changes to the current rules that would provide relief to the regulated community, in addition to other changes intended to streamline, simplify, and reduce regulatory requirements for hunters.

The amendment to §65.90, concerning Definitions, eliminates the definition for and references to "Tier 1" facilities, for reasons more thoroughly covered elsewhere in this preamble in the discussion of the amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities.

The amendment to §65.92, concerning CWD Testing, requires the euthanization and post-mortem testing of any breeder deer confirmed positive for CWD via ante-mortem testing. Under current rule, only deer that die in a deer breeding facility or deer that test positive via ante-mortem testing in a deer breeding facility that is epidemiologically connected to a positive deer breeding facility are required to be post-mortem tested for CWD. The immediate post-mortem testing of any deer confirmed positive via ante-mortem testing results in the immediate removal of a possible infectious animals and a method for continuing evaluation of the efficacy of ante-mortem testing (which is not as reliable as post-mortem for definitive disease diagnosis).

The amendment to §65.98, concerning Transition Provisions, makes changes necessary to comport the rules with a rulemaking that took effect earlier this year (49 TexReg 267). In that rulemaking, the department amended §65.98 to implement a 60-day deadline for the submission of tissue samples from breeding facilities epidemiologically connected to deer infected with CWD, as well as to eliminate provisions allowing external nursing facilities for breeder deer. Those changes could not be made in the sections where they properly belong (§65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities) because that section was itself the subject of a rulemaking that had not yet taken effect, rendering it unavailable for amendment at the time. Now that the amendment to §65.99 has taken effect, the changes to §65.98 can be removed and placed in §65.99 where they belong, which is accomplished in this rulemaking.

The amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities, eliminates the "Tier 1" category of deer breeding facilities and the testing requirements for such facilities. As mentioned previously in this preamble, the department is committed to minimizing, when it is possible to do so without compromising the integrity of the rules, regulatory burdens associated with the department's response to the spread of CWD by the regulated community of persons who are authorized to possess, breed, and transfer live deer. As part of this effort, the department considers that rules adopted in December, 2021 (46 TexReg 8724) without question improved the efficacy of the department's surveillance efforts for captive deer populations, in concert with recently adopted rules (48 TexReg 5146) requiring the ante-mortem testing of breeder deer prior to transfer to another deer breeder appear to have introduced a level of confidence sufficient for the department to eliminate the need for the "Tier 1" category of facilities for purposes of CWD management. "Tier 1" breeding facilities are facilities that received an exposed deer that was in a "trace-out" breeding facility (a breeding facility that received an exposed deer from a CWD-positive breeding facility). The precepts of epidemiological investigation dictate the creation of a record of the movements of individual animals that may have come into contact with an infected animal or environment, as well as the tracing of the movement of animals that may have come into contact with animals that may have come into contact with an infected animal or environment. By creating a movement history for deer entering and leaving a facility where a positive deer has been found, the department is able to employ surveillance and testing regimes that can exclude animals and facilities from the suspicion of harboring CWD. Eliminating the "Tier 1" designation will not only result in MQ designation for some breeding facilities currently designated NMQ, it will also allow the department to redirect limited resources to other avenues of CWD response. The amendment also incorporates provisions from §65.98, concerning Transition Provisions, for the reasons set forth in the discussion of the amendment to that section elsewhere in this preamble. As mentioned previously in this preamble in the discussion of the amendment to §65.98, the department in a previous rulemaking placed provisions regarding nursing facilities and tissue sample submission deadlines in that section because the section where they more properly and intuitively belonged (§65.99) was unavailable for the amendment. The amendment as adopted accomplishes the transfer of those provisions to §65.99.

The department received 20 comments opposing adoption of the rules as proposed. Of those comments, ten offered a reason or rationale for opposition. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that deer breeding should be illegal. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the department is required to issue a deer breeder permit to any qualified individual. The commission does not have the authority to modify or eliminate that requirement. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the transport of live deer should be prohibited. The department disagrees with the comment and responds that although the cessation of deer movement via human agency would certainly result in an immediate and drastic reduction in the spread of CWD, the department believes that effective surveillance measures and cooperation from the regulated community can accomplish the same thing or close to it. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department cannot succeed if all efforts are focused on deer breeders. The department disagrees with the comment and responds that because deer breeding facilities have been the source of the overwhelming majority of CWD detections in the state, regulations affecting deer breeders are unavoidable. The department further responds that because captive populations and free-ranging populations present completely different realities with respect to disease management, the measures associated with surveillance in deer breeding facilities are epidemiologically appropriate and necessary. The department also notes that deer breeders who exercise care and perform due diligence when purchasing deer are far less likely to encounter regulatory ramifications associated with epidemiological connectivity to positive or exposed herds. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department should be developing genetically resistant deer. The department disagrees with the comment and responds that although it has actively funded research into the genetic dimensions of CWD resistance and believes there could be some utility with respect to farmed cervids, there is little evidence to suggest that such resistance, if possible, could be achieved at landscape scale in free-ranging populations; thus, the issue is primarily of interest as an animal husbandry practice in commercial scenarios as opposed to genuine wildlife management. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department has not proven that CWD is a threat to humans. The department disagrees with the comment and responds that the zoonotic potential of CWD is still unknown at present and in any case the department's actions with respect to CWD are predicated on threats to a public resource. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the current rules should be retained until ante-mortem testing protocols become as reliable as post-mortem testing protocols. The department disagrees with the comment and responds that although retention of the current rules would certainly provide increased confidence that CWD outbreaks are being monitored effectively, the effectiveness of recent rulemakings to improve routine surveillance measures within deer breeding facilities has made it possible to eliminate the "Tier 1" category of epidemiological connectivity as a component of the department's CWD response. The department certainly urges deer breeders and landowners to investigate the provenance of breeder deer prior to purchase. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that visible identification should be required to accompany all breeder deer upon release. The department disagrees in part with the comments and responds that visible identification of released breeder deer is unquestionably of significant value with respect to enhancing epidemiological investigations and is currently regulated by statute. No changes were made as a result of the comments.

One commenter opposed adoption and stated, "Nothing wrong with deer on private fenced in ranches." The department agrees with the comment. No changes were made as a result of the comment.

One comment opposing adoption was determined to be incoherent and as such, not germane. No changes were made as a result of the comment.

The department received 207 comments supporting adoption of the rules as proposed.

The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 22, 2024.

TRD-202403259

Todd S. George

Assistant General Counsel

Texas Parks and Wildlife Department

Effective date: August 11, 2024

Proposal publication date: April 19, 2024

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

31 TAC §§65.314 - 65.320

The Texas Parks and Wildlife Commission in a duly noticed meeting on March 28, 2024, adopted amendments to 31 TAC §§65.314 - 65.320, concerning the Migratory Game Bird Proclamation. The amendment to §65.315 is adopted with changes to the proposed text as published in the February 23, 2024, issue of the Texas Register (49 TexReg 979) and will be republished. The amendments to §65.314 and §§65.316 - 65.320 are adopted without change and will not be republished.

The change to §65.315, concerning Ducks, Coots, Mergansers, and Teal, adds a date reference to subsection (b)(3)(A) to clarify that the provision applies to the 2024-25 hunting season.

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

With exceptions as noted, the amendments specify the season dates for hunting the various species of migratory game birds for 2024-2025 seasons. The rules (except as noted in the discussion of the proposal for season dates in the Special White-winged Dove Area, the daily bag limits for greater white-fronted geese, and the elimination of the Light Goose Conservation Order) retain the season structure and daily bag limits for all species of migratory game birds from last year while adjusting the season dates to allow for calendar shift (i.e., to ensure that seasons open on the desired day of the week), since dates from a previous year do not fall on the same days in following years.

The amendment to §65.314, concerning Doves (Mourning, White-Winged, White-Tipped, White-Fronted Doves), implements a slightly different structure for the Special White-winged Dove Area (SWWDA) season than in years past. Under the federal frameworks, Texas is allowed 90 total days of dove hunting opportunity in the South Zone (which is also designated as a special management area for white-winged doves). Under the frameworks, the earliest possible date for full-day dove hunting in the South Dove Zone is September 14; however, Texas is also authorized to have up to six half-days of hunting opportunity between September 1 and September 19. Department survey data have consistently indicated strong hunter and landowner preference for the earliest possible hunting opportunity available under the federal frameworks, as well as for maximal weekend hunting opportunity during the SWWDA season. In a typical year, this would take the form of two three-day weekends of half-day special white-winged opportunity beginning on the earliest day possible under the frameworks. The 2024-25 calendar, however, presents a challenge because September 1, 2024 (the earliest possible day for SWWDA hunting) falls on a Sunday. The department has determined that in keeping with hunter and landowner preference, this year's SWWDA dates would be best employed by implementing a season structure of September 1-2 (Sunday and Monday, which is also Labor Day), September 6-8 (a traditional three-day weekend), and September 13, which is a Friday and the last day before the earliest possible date that full-day dove hunting can be provided under the federal frameworks (September 14).

The amendment to §65.314 also moves the winter segment in North Zone to occur one week later, compared to last year. The department believes that additional hunting opportunity can be generated by encompassing the period when schools are on holiday break and hunters have more time to be in the field. The department does not expect the shift to result in negative impacts to dove populations.

Finally, the amendment to §65.314 nonsubstantively restructures subsection (b)(3) to more clearly establish the bag composition differential in the South Zone during the season in the Special White-winged Dove Area.

The amendment to §65.315, concerning Ducks, Coots, Mergansers, and Teal, alters subsection (c) to reflect recent taxonomic changes to species composition. The daily bag limits currently refer to "Mexican-like" ducks. The Service recently recognized "Mexican ducks" as a protected species. The department therefore must alter regulatory provisions consistent with that determination.

The amendment to §65.316, concerning Geese, alters the current daily bag composition for dark geese in the Western Zone by removing the two-bird daily bag limit for white-fronted geese, thus creating a five-bird aggregate bag limit for all species of dark geese. The new mid-continent management plan for greater white-fronted geese (approved by the Service, the Canadian Wildlife Service, and the Central and Mississippi Flyway Councils in March of 2023) allows for the elimination of the differential bag limit, which the department believes will reduce potential confusion associated with species identification.

The proposed amendment to §65.316 also eliminates the Light Goose Conservation Order (LGCO) in Texas. Historically, Texas coastal prairies and marshes were home to one of North America's largest wintering population of light geese (snow geese, Ross's geese). Due to a variety of reasons, including habitat loss, changes in agricultural practices, and increases in hunting pressure, the Texas Gulf Coast no longer winters a significant number of light geese. The most recent data available indicate an all-time low population estimate and an 86 percent decline in abundance since the implementation of the LGCO. Department data indicate that participation levels and harvest associated with the LGCO (statewide) have steadily and significantly declined since its inception. The LGCO was implemented in 1999 as a management tool intended to reduce habitat degradation and destruction of light goose breeding grounds in Canada. The department noted and emphasized at the time the LGCO was implemented and continuously thereafter that it was not intended to function as a traditional hunting season or to increase hunting opportunity (although it did provide the latter as an ancillary benefit). The department has determined that continued participation in the LGCO is now incompatible with light goose management priorities in Texas, as Texas populations continue to exhibit troubling downward trends. Elimination of the LGCO is expected to contribute to department efforts to stabilize and possibly reverse those trends in coastal populations of light geese in Texas. The elimination of the LGCO does, however, now make it possible for the commission to provide the full 107 days of hunting opportunity for light geese afforded the department under the federal frameworks; therefore, the elimination of the LGCO will result in a light goose season to run from November 2, 2024 to February 14, 2025, with a five-bird daily bag limit and a possession limit of three times the daily bag limit, which is necessary to address concerns over the previously discussed declining light geese populations. The amendment to 65.316 also reduces the current statewide daily bag limit for light geese, from ten geese to five geese, and implements a possession limit of three times the daily bag limit. There is currently no possession limit; however, the department has determined that the lower bag limit and standard possession limit, which are consistent with current standards in effect for dark geese, should be implemented in order to determine the impacts of the new season structure on geese populations.

The department received 24 comments opposing adoption of the portion of the proposed amendment to §65.314, concerning Doves (Mourning, White-Winged, White-Tipped, White-Fronted Doves) that established the season structure for the Special White-Winged Dove Area (SWWDA). Of those comments, eight provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that the season should begin on a Friday. The department disagrees with the comment and responds that hunter and landowner surveys consistently indicate a strong preference for the SWWDA season to open on the earliest day possible under the federal frameworks, which is Monday, September 1. No changes were made as a result of the comment.

Five commenters opposed adoption and stated that the season should open on a Saturday and run until Monday or open on a Friday and run until Sunday. The department disagrees with the comments and responds that hunter surveys consistently indicate a strong preference for the SWWDA season to open on the earliest day possible under the federal frameworks, which is Monday, September 1. Since the federal frameworks allow six half-days of hunting opportunity in the SWWDA between September 1 and September 19, it is not possible to provide both the earliest opportunity possible and two full weekends of hunting. The commission has determined that providing the earliest opportunity possible is preferred by the majority of hunters. No changes were made as a result of the comments.

One commenter opposed adoption and stated that hunters in the South Zone are being penalized because hunting is allowed in all zones on September 1, but hunters in the South Zone have a different bag composition. The department disagrees with the comment and responds that the federal frameworks allow 90 days of dove hunting with identical bag composition in all three zones in Texas, but set September 14 as the earliest opening day possible in the South Zone; however, the federal frameworks also specifically authorize six half-days of dove hunting in the SWWDA between September 1 and September 19 with a special bag composition established by the Service. No changes were made as a result of the comment.

One commenter opposed adoption and stated that all dove zones should be opened on September 1. The department disagrees with the comments and responds that under the federal frameworks, the South Zone cannot open before the Saturday closest to September 14, except for the six half-days of hunting allowed for the SWWDA beginning September 1. No changes were made as a result of the comment.

The department received 145 comments supporting adoption of the proposed amendment regarding the season structure of the SWWDA.

The department received 36 comments opposing the portion of the proposed amendment to §65.314 that altered the timing of the dove season in the North Zone compared to last year. Of those comments, six offered a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that because most hunters do not pursue doves once deer season opens, if a week of hunting opportunity is to be moved, it should be added to the end of the first segment. The department disagrees with the comment and responds that the rule as adopted is intended to provide greater opportunity by adding a week during the holiday season, when students are out of school and most adults have additional time to be in the field. The department also notes that the rule would result in concurrent hunting opportunity for dove and deer during the holidays, which the department believes is a better allocation of hunting opportunity. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "[n]obody hunts during the winter segment anyway, so it makes no sense to eliminate the opportunity that people actually do utilize." The department disagrees with the comment and responds that the rule as adopted is intended to provide greater opportunity by adding a week during the holiday season, when students are out of school and most adults have additional time to be in the field. The department also notes that the rule would result in concurrent hunting opportunity for dove and deer during the holidays, which the department believes is a better allocation of hunting opportunity. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rule will result in a net loss of hunting days because "[t]he last week will overlap with other species. The first week of dove season gives Texas hunters another week that we can be in the field and legally hunt." The department disagrees with the comment and responds that the rule as adopted provides the full 90 days of hunting opportunity for dove available under the federal frameworks, and that concurrency with other seasons is not equivalent to fewer days of hunting opportunity, since there are different seasons for different species. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that moving the season later will result in reduced participation. The department disagrees with the comments and responds that participation rates in the winter segment are historically lower than those for the first segment, but making more time available during the holidays is intended to provide opportunity when students are out of school and many people have additional time to be in the field. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the season should extend into February. The department disagrees with the comment and responds that under the federal frameworks, dove seasons in the Central and North zones must close by January 25. No changes were made as a result of the comment.

The department received 121 comments supporting adoption of the proposed amendment to alter the timing of the winter segment in the North Zone.

The department received 37 comments opposing adoption of the portion of the proposed amendment to §65.314 that established season lengths and daily bag limits for dove based on last year's season structure. Of those comments, 17 offered a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated, "Open it Sept 1 South of IH 10 and East of 45." The department disagrees with the comment and responds that zone boundaries cannot be changed without the prior approval of the Service, and in any case the federal frameworks do not allow dove hunting before September 14 in the South Zone, other than the six half-days of opportunity in the SWWDA. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that the first segment of the dove season should be longer and the winter segment should be reduced because there are more dove available earlier in the year. The department disagrees with the comments and responds that prolonged exposure to hunting pressure tends to result in increased spatial dispersal of doves, and the purpose of the split is to allow doves to congregate and reform into flocks, which enhances hunting opportunity. No changes were made as a result of the comments.

Eleven commenters opposed adoption and stated that the first segment in the South Zone season should start a week later and run until the Sunday after Thanksgiving. The department disagrees with the comment and responds that hunter surveys indicate a strong preference for the season in the South Zone to begin on the earliest day possible under the federal frameworks, which is the Saturday closest to September 14. The department also notes that beginning the first segment on September 21 and ending it on the Sunday after Thanksgiving would make the first segment 72 days long, leaving only 18 days available for the winter segment, which is undesirable. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the season should open at least one week later to prevent dogs and hunters from heat stroke. The department disagrees with the comment and responds that no regulation can compensate for the failure of any person to improperly prepare for or respond to hot weather. No changes were made as a result of the comment.

One commenter opposed adoption and stated that dove season should be closed for one or two years to replenish the populations. The department disagrees with the comment and responds that the seasons and daily bag limits as adopted will not result in negative population impacts because federal frameworks are quite conservative and overharvest under the seasons and bag limits as adopted is unlikely. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Central Zone season structure should be identical to the North Zone season structure from last year. The department disagrees with the comment and responds that the first segment in the North Zone is longer than the first segment in the Central Zone in order to provide hunters in the North Zone greater ability to take advantage of variable weather patterns during dove migration. No changes were made as a result of the comment.

The department received 35 comments opposing adoption of the portion of the proposed amendment to §65.315, concerning Ducks, that creates a distinct taxonomic identification for Mexican ducks in the aggregate daily bag limit. Two commenters provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that Mexican ducks are an invasive species and should be treated as such. The department disagrees with the comment and responds that Mexican ducks are indigenous to Texas and North America. No changes were made as a result of the comment.

One commenter opposed adoption and stated that hunters should be allowed to take six "Mexican whistling" ducks per day. The department disagrees with the comment and responds that the federal frameworks do not allow the take of more than one "dusky" (mottled duck, Mexican duck, black duck and their hybrids) duck per day. No changes were made as a result of the comment.

The department received 151 comments supporting adoption of the portion of the portion of the proposed amendment to §65.315, concerning Ducks, that altered taxonomic references.

The department received 50 comments opposing adoption of the portion of the proposed amendment to §65.315, concerning Ducks, that adjusted season dates to account for calendar shift. Of those comments, 38 provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's responds to each, follow.

Fourteen commenters opposed adoption and stated that the season should be extended into February. The department disagrees with the comment, and all other similar comments, and responds that the last day of duck hunting allowed under the federal frameworks in Texas is January 31. No changes were made as a result of the comments.

One commenter opposed adoption and stated that there should be a statewide duck season running December 1 - January 31 with a bag limit of three ducks of any kind. The department disagrees with the comment and responds that a season running from December 1 to January 31 would present several disadvantages, chiefly in the form of providing 12 fewer hunting days than the federal frameworks allow (74), but mostly in the form of failing to provide the maximum daily bag limit allowed under the federal frameworks (6), the allocation of hunting opportunity chronologically to account for the tremendous geographical size of Texas, and not providing for a time period for ducks to rally and rest, which enhances hunter opportunity. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that the season should begin later. The department disagrees with the comment and responds that without a reference to one of the three zones, an explanation for the season structures as adopted is unnecessarily time-consuming; however, in general, the timing of season segments is intended to maximize hunting opportunity when the migration is at its height while providing concurrent opportunity for other species if practicable. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the season run to the end of the federal framework while still providing the maximum days allowed under the federal frameworks. The department disagrees with the comment and responds that a season of 74 consecutive days would not provide for optimal hunting in the sizeable portion of the state where ducks begin to arrive in huntable numbers in late October and early November, and would not provide for a split season. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the daily bag limit for redhead ducks should be increased. The department disagrees with the comment and responds that the maximum daily bag limit for redhead ducks under the federal frameworks is two, which is the current daily bag limit. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the season should begin later.

The department disagrees with the comment and responds that without a specific reference to a particular zone, an explanation of season structures would be unnecessarily time-consuming; however, a later opener in any zone other than the South Zone would deprive a sizeable portion of the state where ducks begin to arrive in huntable numbers in late October and early November. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the aggregate daily bag limit should be reduced because there are fewer ducks. The department disagrees with the comment and responds that there is no evidence to suggest the current aggregate daily bag limit is causing negative impacts to the populations of any species of duck. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the daily bag limits could be devastating to waterfowl with the dry conditions in the Pothole Prairie regions. The department disagrees with the comment and responds that there is no evidence to suggest that current bag limits are resulting in negative impacts to the populations of any species of duck in the Pothole Prairie region. No changes were made as a result of the comment.

One commenter opposed adoption and stated the department will sell more licenses if the season is established to "match the actual migration patterns" and not the federal frameworks. The department disagrees with the comment and responds, first, that seasons cannot by federal law be set in violation of the federal frameworks, and second, that migratory game species are cooperatively managed by American states, Canadian provinces, and their respective national governments by means of the "flyway" system, which attempts to fairly allocate hunting opportunity without creating adverse impacts to populations. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that bag limits and/or season length should be reduced to protect populations. The department disagrees with the comment and responds that the federal frameworks are quite conservative and overharvest under the seasons and bag limits as adopted is unlikely. No changes were made as a result of the comments.

Three commenters opposed adoption and stated that the hiatus between season segments in the North Zone should be 12 days instead of five. The department disagrees with the comment and responds that the purpose of the "split" season is twofold: it allows for harvest during peak migration of different species and allows ducks to rally and recuperate without being subjected to hunting pressure. The department believes that a five-day split allows for sufficient rest while maximizing opportunity at the height of migration. No changes were made as a result of the comments.

Six commenters opposed adoption, stated dissatisfaction with bag limits, and articulated a desire for bag limits to be increased for specific species. The department disagrees with the comments and responds that the rules as adopted implement the maximum bag limits allowed under the federal frameworks. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the season should begin after Thanksgiving and should not contain a "split." The department disagrees with the comment and responds that delaying the season until after Thanksgiving and eliminating the "split" would result in a loss of hunting opportunity because under the federal frameworks Texas is allowed a total of 74 days of hunting between September 21 and January 31. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the season should begin the second weekend in November and the "split" should be eliminated. The department disagrees with the comment and responds that a "split" allows duck populations to rest and recuperate without hunting pressure, which optimizes successful migration and eventual reproduction, as well as hunter success. No changes were made as a result of the comments.

Two commenters opposed adoption and stated that the season should be shifted to occur one week later because of climate change. The department disagrees with the comments and responds that shifting the season to run one week later would result in a season the last week of which would occur mid-week, creating an overall loss of hunting opportunity because the federal frameworks do not allow duck hunting in Texas beyond January 31, and in any case would not compensate for the impacts of climate change on duck habitat or populations. No changes were made as a result of the comments.

The department received 192 comments supporting adoption of the portion of the proposed amendment to §65.315, concerning Ducks, that adopts season dates to account for calendar shift.

The department received 223 comments opposing adoption of the portion of the proposed amendment to §65.316, concerning Geese, that eliminates the Light Goose Conservation Order (LGCO). Of those comments, 45 articulated a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

Several commenters opposed adoption and stated that elimination of the LGCO would be a reduction in hunting opportunity (8 comments), a disservice to hunters (1), a deprivation of rights (1), a punitive action (1) and other similar comments. As noted previously in this preamble, the preamble to the proposed rules, and frequently since the inception of the LGCO, the LGCO is strictly a management mechanism (hence the title) and was never intended to function as a traditional hunting season or to provide or increase hunting opportunity, although it did provide that additional benefit. No changes were made as a result of the comment.

One commenter opposed adoption and stated that because of the COVID-19 pandemic, population data for light goose populations is incomplete or inaccurate. The commenter also stated that the department is lying about breeding numbers and recruitment, stating that flocks number in the tens of thousands in numerous locations, hundreds of thousands in other states, and contain 10-15 percent juvenile geese. The department disagrees with the comment and responds that despite temporary interruptions in survey efforts caused by the pandemic, there is agreement that population trends remain the same, which indicates survey accuracy. The department further notes that recruitment surveys are conducted by trained Canadian Wildlife Service biologists and represent the best overall tool to evaluate recruitment to these populations. The department also responds that the data used in management decisions is factual, collected systematically, and interpreted without bias. Juvenile geese demonstrate strong vulnerability to decoys and calls and the data cited by the commenter are harvest-related (i.e., do not include other causes of mortality). In any case, a minimum of 18% productivity is necessary to even maintain a population, let alone result in population growth. No changes were made as a result of the comment.

One commenter opposed adoption and stated that contrary to the department's fiscal note accompanying the proposed rule, elimination of the LGCO will devastate small businesses. The department disagrees with the comment and responds that the rule as adopted regulates recreational activities of licensed hunters and does not regulate any business or commercial activity or interest. No changes were made as a result of the comment.

Four commenters opposed adoption and stated that the LGCO should not be eliminated in Texas unless it is being eliminated in other states. The department disagrees with the comments and responds that participation in the LGCO is optional and not conditioned on the participation of any other state, that the department has a statutory duty to protect, manage, and conserve the wildlife resources of the state, and given the severe declines of light geese populations on the Texas Gulf Coast, the prudent course of action is to eliminate the LGCO in order to facilitate more effective management activities in Texas. No changes were made as a result of the comments.

Four commenters opposed adoption and stated that the LGCO should be retained, but with daily bag limits and other restrictions. The department disagrees with the comments and responds that, as noted earlier, the LGCO was intended to function as a population reduction mechanism, not a traditional hunting season. This is why there are no bag limits or restrictions on means and methods during the LGCO and all other seasons for migratory game birds must be closed while it occurs. Bag limits and other restrictions are components of a traditional hunting season, which the department notes are why the elimination of the LGCO allows for the entire 107 days of light goose hunting opportunity provided under the federal frameworks. No changes were made as a result of the comments.

Two commenters opposed adoption and made statements alleging hidden agendas by groups and individuals. The department disagrees with the comments and responds that the rules as adopted were not influenced by anything other than the precepts of sound biological management in the context of valid biological data. No changes were made as a result of the comments.

Four commenters opposed adoption and stated, variously, that there is no data to support elimination of the LGCO, that what hunters see in real time should take precedence over "skewed data that's taken subjectively," that goose populations haven't declined but simply "shifted to other locations," and other, similar statements questioning or repudiating the validity of the scientific basis for the department's actions. The department disagrees with the comments and responds that there is ample data to support elimination of the LGCO, that anecdotal experience has been repeatedly and conclusively shown to be a far less reliable and less efficacious basis for landscape-scale management decisions than systematic data collection and interpretation by scientifically accepted methods, and that therefore, because the department employs such scientific rigor, the data is neither skewed nor interpreted subjectively. No changes were made as a result of the comments.

Five commenters opposed adopted and stated that hunting is not the cause of the population declines in light geese on the Texas Gulf Coast. Three of the commenters also stated that the department should be doing more to create habitat/address habitat loss. The department disagrees with the comments and responds that although hunting mortality is not believed to be the primary contributor to population declines, hunting pressure is a significant population disruptor as available habitat dwindles due to steady urbanization and development. One of the goals of the rule is to reduce hunting pressure while various management activities take place. The department also notes that habitat loss on the Texas Gulf Coast is driven by economic factors completely beyond the department's ability to manage, control, or influence and that those economic realities make the expense of acquiring and managing goose habitat at the magnitude needed to restore historic population levels under the department's current budgetary realities extremely problematic. No changes were made as a result of the comments.

Three commenters opposed adoption and stated that it makes no sense to eliminate the LGCO because an overpopulation problem continues to exist. The department disagrees with the comments and responds that, as stated in the preamble to the proposed rule, the participation of Texas in the LGCO is no longer necessary for the purposes of population control, but eliminating it will allow Texas to more effectively manage light goose populations that are in severe decline on the Texas Gulf Coast. No changes were made as a result of the comments.

One commenter opposed adoption and stated that if other states "are still pressuring geese, the state of Texas should have the right to hunt the geese." The department disagrees that the state of Texas is being denied "the right to hunt geese," as the federal frameworks establish hunting opportunity within each state in each flyway and provide each state with the option of participating in the LGCO or not. The rules as adopted eliminates the LGCO but also will provide hunters in Texas with the maximum 107 days of light goose hunting opportunity allowed under the federal frameworks. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "the demand is there." The department disagrees that demand is or should be the sole determinant in agency management decisions. No changes were made as a result of the comment.

One commenter opposed adoption and stated that eliminating the LGCO will actually hurt snow goose populations because allowing birds to rest in Texas will allow more birds to be harvested outside of Texas. The department disagrees with the comment and responds that the location of eventual harvest, if it occurs, is irrelevant in the greater context of population management, but in any case, harvest mortality is not the driving rationale for the elimination of the LGCO in Texas. Rather, the department is attempting to retain what remains of coastal snow goose populations and believes that relieving hunting pressure will stabilize residency behavior. No changes were made as a result of the comment.

One commenter opposed adoption and stated that outfitters provide the habitat for light geese and that without the LGCO there will be no incentive to continue providing habitat. The department disagrees with the comment and responds that in the final analysis, habitat management practices are up to individual landowners irrespective of the presence or absence of the LGCO; however, the department believes a 107-day open season should be sufficient motivation to continue to manage habitat. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the actions of one state are not enough to change migration patterns. The department disagrees with the comment and responds that migratory birds, including geese, are very sensitive to unfavorable conditions in wintering environments, such as are currently found on the Texas Gulf Coast. No changes were made as a result of the comment.

Four commenters opposed adoption and stated that light geese depredate on crops in other states and need to be controlled. The department disagrees with the comment and responds that the LGCO was never intended to function as a mechanism to control crop depredation, which is a specific condition that cannot be addressed in this rulemaking. No changes were made as a result of the comments.

One commenter opposed adoption and stated that removal of the LGCO will hurt persons whose only goose-hunting opportunity occurs on public lands. The department disagrees with the comment and responds that although the LGCO is being eliminated, there will now be the full 107 days of goose hunting allowable under the federal frameworks. No changes were made as a result of the comment.

The department received 77 comments supporting elimination of the LGCO.

The department received 201 comments opposing adoption of the portion of the proposed amendment to §65.316, concerning Geese, that reduces the daily bag limit for light geese from 10 geese to five geese. Of those comments, 22 articulated a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that every other state in the Central Flyway has a daily bag limit of 50 geese and that because the number of hunters in Texas is so low and the number of hunters actually harvesting 10 geese is so low, harvest will be negligible. The department disagrees with the comment and responds that daily bag limits in other states are irrelevant in the context of management challenges in Texas, and in particular, because the department is trying to relieve overall hunting pressure on light geese by reducing the daily bag limit, which is intended to decrease the time afield by hunters and thus increase wintering residency time in Texas.

One commenter opposed adoption and stated that dedicated roost ponds are needed and the department should provide funding to landowners and outfitters to create them. The department agrees that more high-quality habitat is desirable, but the cost of large-scale habitat acquisition and development is far beyond the fiscal capabilities of the department under current budget constraints. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the daily bag limit should remain at 10 because very few people manage to harvest five as it is and hunters should be allowed to get 10 on the few days when the opportunity presents itself. The department disagrees with the comment and responds that the precipitous decline of light goose populations makes it prudent to err on the side of caution while determining the best path forward with respect to addressing documented population declines. No changes were made as a result of the comment.

One commenter opposed adoption and stated that personal observation refutes department claims of population decline. The department disagrees that anecdotal observations are either more accurate or more useful than the scientifically standardized methodologies employed by the department and other agencies to determine population status. No changes were made as a result of the comment.

One commenter opposed adoption and stated that duck hunters outnumber goose hunters and therefore the daily bag limit for light geese should remain at ten. The department disagrees that the number of duck hunters relative to the number of goose hunters is a useful index for determining daily bag limits for either species. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Plenty of geese to hunt they are still going to hunt geese in the northern states." The department infers from the comment that the commenter believes that the bag limit should not be reduced because light geese are abundant and geese will still be hunted elsewhere. The department disagrees with the comment in the context that harvest in other states is related or contributing to documented population declines in Texas; however, to the extent that Texas can influence the population status of local populations, a daily bag limit reduction is expected to stabilize and possibly reverse documented population declines. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the number of snow geese continues to grow and will soon be detrimental to other migratory species. The department disagrees with the comment and responds that there is no indication that snow goose populations in Texas are or are likely to negatively impact other migratory species. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there is no reason to reduce the daily bag limit during the regular season if a conservation season is still in place because the conservation season is there for a reason. The department disagrees with the comment and responds that the LGCO is not and never was a hunting season, but a management mechanism; it is being eliminated as part of an effort to protect wintering populations of mid-continent snow geese, and the daily bag limit reduction is additive to that effort. No changes were made as a result of the comment.

Two commenters opposed adoption and stated the five-bird daily bag limit isn't worth the effort and the cost. The department disagrees with the comment and responds that department survey data indicate very few hunters harvest more than five light geese per day during the regular season under the current bag limit; thus, the department believes that the rule as adopted will not be a disincentive to participation. No changes were made as a result of the comments.

One commenter opposed adoption and stated that "[t]here is no use in restricting the ability for people to hunt when the opportunity is there." The department disagrees, first, that the rules restrict any person's ability to hunt, and second, that unregulated hunting of populations known to be in decline is prudent. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "[t]hey are extremely overpopulated and destructive to farmland and food sources." The department disagrees with the comment and responds that the mid-continent population of snow geese in Texas has declined by over 80 percent and snow goose populations are not known to be a significant cause or revenue loss for agricultural producers in Texas nor are they believed to be degrading habitat for other species. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that by the department's own admission, harvest mortality is not driving population declines; therefore, a bag limit reduction will not be effective. The department disagrees with the comment and responds that although harvest mortality is not the major driver of population declines, harvest pressure significantly affects behavior and population indices. Reducing the bag limit will allow the department to more effectively manage mid-continent goose populations in Texas. No changes were made as a result of the comments.

One commenter opposed adoption and stated that light geese are severely overpopulated and are destroying their breeding grounds. The department disagrees with the comment and responds that while that was once believed to be the case, the species has exhibited significant resiliency in the last thirty years and there is no longer a crisis with respect to catastrophic population decline. No changes were made as a result of the comment.

One commenter opposed adoption and stated that snow geese decimate winter wheat crops and are detrimental to the farming communities in Texas, and that "if not controlled legally, they will likely be dealt with illegally in these same communities in much less environmentally/ecologically friendly methods." The department disagrees with the comment and responds that landowners can seek relief from crop damage caused by wildlife by contacting the United States Department of Agriculture, Wildlife Services and the implementation of authorized non-lethal hazing techniques. The department further responds that it is illegal to kill migratory birds by any means or method other than those approved by the federal government and the State of Texas, and violators are subject to legal penalties, including incarceration, upon conviction. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "[t]here is no scientific data that would back this proposal up from an overall numbers standpoint." The department disagrees that the rule as adopted must be based on completely conclusive data; however, department population data reveals an alarming decline in snow goose populations on the Texas Gulf Coast and the department believes that reducing hunting pressure, which is accomplished by lowering the daily bag limit, will enhance the effectiveness of other management activities in stabilizing and perhaps reversing recent population trends. No changes were made as a result of the comment.

One commenter opposed adoption and stated that hunters will not go hunting for fear of killing more than five light geese with a single shell. The department disagrees with the comment and responds that harvest surveys indicate that most hunters do not harvest more than five light geese per day as it is, but in any case, conscientious and responsible hunters should have no issues avoiding violation of daily bag limits. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "[m]ost hunters will never shoot 10 snows per person on a given day. Lowering to 5 really isn't changing anything." The department disagrees with the comment and responds that lowering the daily bag limit will contribute additively to department efforts to stabilize and restore populations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that goose population declines are the result of government failure to provide subsidies to private landowners, which will eventually lead to fewer and fewer hunters and the fiscal collapse of the department. The department disagrees with the comment and responds that the department cannot condition or dictate land use priorities to private landowners and the expense of subsidizing private landowners at the magnitude needed to restore historic population levels is beyond the fiscal capabilities of the department under current budget constraints. No changes were made as a result of the comment.

One commenter opposed adoption and stated that halving the daily bag limit will cause populations to increase. The department agrees with the comment. No changes were made as a result of the comment.

One commenter opposed adoption and stated that if the LGCO is removed, the current bag limit should be retained in order to evaluate the impact of LGCO removal before making alterations to the general season. The department disagrees with the comment and responds that the elimination of the LGCO, in concert with daily bag limit reduction, is expected to result in more timely population recovery as opposed to a piecemeal approach. No changes were made as a result of the comment.

The department received 95 comments supporting the portion of the proposed amendment to §65.316 that reduced the bag limit for light geese.

The department received 74 comments opposing adoption of the portion of the proposed amendment to §65.316, concerning Geese, that increases the possession for light geese to three times the daily bag limit. Of those comments, two articulated a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that there should be no possession limit. The department disagrees with the comment and responds that the possession limit as adopted is intended to conform light geese possession limits with the possession limits for all other migratory birds. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "[s]hould be able document legality with dates photos and keep as many as the cooler can hold." The department responds that it is unclear to what the commenter is referring, as the possession limit is the maximum number of birds that may be possessed at one time by any person and is a matter of physical possession, not documentation, which can be proven or refuted by counting. In any case, creating an arbitrary volumetric possession limit is equivalent to having no possession limit, which is not allowed under the federal frameworks. No changes were made as a result of the comment.

The department received 170 comments supporting adoption of the proposed amendment to §65.316 that increased the possession limit for light geese to three times the daily bag limit.

The department received 121 comments opposing adoption of the portion of the proposed amendment to §65.316, concerning Geese, that increases the season length for light geese in the Eastern Zone to the full 107 days of hunting opportunity allowed under the federal frameworks. Of those comments, 15 articulated a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

Two commenters opposed adoption and stated that the season should start the week before Thanksgiving. Another commenter stated the season should begin after Thanksgiving. The department disagrees with the comments and responds that the season dates selected correspond to the time span when the greatest numbers of geese are present in the Eastern Zone, which department surveys indicate is consistent with hunter preference. The season also represents the optimization of hunting opportunity for popular species of waterfowl in addition to geese. No changes were made as a result of the comments.

One person opposed adoption and stated that it makes no sense to eliminate the LGCO in order to gain more days of hunting for dark geese. The department agrees with the comment and responds that the LGCO was not eliminated with the intent of gaining additional days of dark goose hunting. No changes were made as a result of the comment.

Six commenters opposed adoption and stated that goose season should close on the same day duck season closes. The department disagrees with the comments and responds that ducks and geese are separate biological organisms with different migration and abundance chronologies; therefore, the department selects season dates that correspond to providing the greatest opportunity to the greatest number of hunters to hunt both. No changes were made as a result of the comment.

One commenter opposed adoption and stated the season should be shortened in order to prevent population collapse. The department disagrees with the comment and responds that although light geese populations are in significant decline in Texas, harvest mortality is not the prime driver of or a major contributor to the trend. In any case, the daily bag limit reduction from ten to five geese will act to buffer population impacts from harvest mortality. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the season for light geese should run to the end of February if the LGCO is eliminated. The department disagrees with the comment and responds that typically, most light geese have left the state by mid-February; therefore, the department's season structure is set to occur when the greatest amount of opportunity can be made available to the greatest number of hunters, and to some extent to provide additional hunting opportunity with respect to other species. No changes were made as a result of the comment.

One commenter opposed adoption and stated that adoption of a 107-day season will cause "jump shooters" to begin killing other species unlawfully. The department disagrees with the comment and responds that a decision to violate the law is not predicated on season length. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that a 107-day season should start on November 16 because very few light geese are in the coastal area in November and there are more opportunities to hunt them in February. The department disagrees with the comment and responds that light geese typically begin arriving on the coast in late October and the season is structured to provide the greatest amount of hunting opportunity (including for other species of waterfowl) for the greatest number of hunters. The department also notes that duck season and goose season open on the same day in the Eastern Goose Zone. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the season should run to the last weekend in February. The department disagrees with the comment and responds that the season is structured to provide the greatest opportunity to the greatest number of hunters, including hunting opportunity for species of waterfowl other than geese; as such, the timing of the season structure is intended to take advantage of the height of migration of multiple species to the extent that the overlap can be exploited. No changes were made as a result of the comment.

The department received 143 comments supporting adoption of the portion of the proposed amendment to §65.316, concerning Geese, that increases the season length for light geese in the Eastern Zone to the full 107 days of hunting opportunity allowed under the federal frameworks.

The department received 106 comments opposing adoption of the portion of the proposed amendment to §65.316, concerning Geese, that removes the bag composition restriction for dark geese in the Western Zone. Of those comments, 39 provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's responds to each, follow.

One commenter opposed adoption and stated that the change will "destroy the area in rolling plains that is MAINLY the area affected in west Texas." The department infers that the comment is intended to express anticipation of negative population consequences of the rule as adopted. The department disagrees with the comment and responds that the department seeks to provide the most liberal hunting opportunity possible under the federal frameworks without jeopardizing the resource. The department has determined, based on population and hunter survey data, that elimination of the differential bag limit for dark geese will not result in adverse impacts to that resource. No changes were made as a result of the comment.

One commenter opposed adoption and stated that allowing hunters to take five speckled geese per day will harm the overall population and that people who hunt on a daily basis know this. The department disagrees with the comment and responds although there is some limited management value in anecdotal observation, there is no comparison to the value of long-term datasets collected under scientifically valid sampling methodologies. The department further responds that there is no scientific reason to believe that removal of the differential bag limit will result in negative population impacts. No changes were made as a result of the comment.

Several commenters opposed adoption and stated concerns in various ways about the increased harvest of white-fronted geese as a result of the rule. One commenter stated that removal of the differential bag limit will "create more pressure on birds day in and day out as people shoot into more birds to try to achieve Whitefront limits in areas where Canada geese are less prevalent." One commenter stated, "[W]ill ruin the long term goal if you up the speck limit to 5. Baby steps, make the limit 3 per person. Don't want to ruin the resources." One commenter stated that "[T]he number of birds has decreased with the droughts over the years and increasing the limit will simply decimate the population we still have." Another commenter stated that wounding loss will increase and hunters will stay out longer, putting more pressure on the birds. Twenty-nine additional comments in the same vein were received. The department disagrees with the comments and responds that there is no evidence that major population fluctuations attributable to drought conditions have occurred in the Western Goose Zone over the last 10-year period and population impacts resulting from elimination of the differential bag limit are expected to be negligible. The long-term population goals for various populations of dark geese are established based on long-term data trends by consensus of the flyway members and the Service and those populations are closely monitored to detect abnormalities or perturbations that could warrant attention. The department also responds that even if the harvest were to consist entirely of white-fronted geese, at current levels of hunting effort the impact would not be injurious to white-fronted goose populations. Finally, the department notes that because there is no differential daily bag limit, hunters who choose to do so will be able to harvest five geese at any pace they find convenient. No changes were made as a result of the comments.

Four commenters opposed adoption and stated that the differential daily bag limit should be eliminated in the Eastern Zone as well. The department disagrees with the comment and responds under the federal frameworks, the bag limit in the Eastern Zone cannot exceed two white-fronted geese. No changes were made as a result of the comments.

The department received 160 comments supporting adoption of the portion of the proposed amendment to §65.316, concerning Geese, that removes the bag composition restriction for dark geese in the Western Zone.

The department received 39 comments opposing adoption of the portion of the proposed amendment to §65.316, concerning Geese, that establishes season dates and bag limits to accommodate calendar shift. Of those comments, five provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's responds to each, follow.

Two commenters opposed adoption and stated that "[g]oose season should run into the first 2 weeks of February." The department disagrees with the comments and responds that the season structures reflect the department's goal of providing the greatest opportunity to the greatest number of hunters, including hunting opportunity for species of waterfowl other than geese; as such, the timing of the season structure is intended to take advantage of the height of migration of multiple species to the extent that the overlap can be exploited. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Matching federal bag limits. The population in certain location may not support that and bag limits should be able to be set in specific locations based on populations in those areas." The department interprets the comment to articulate opposition to the application of a single bag composition regulation across the entirety of the Western Goose Zone and a preference for daily bag limits to be localized based on population indices. The department disagrees with the comment and responds that it is both impractical and counterproductive to impose localized differential bag limits, mainly because goose populations are overwhelmingly migratory and thus are cooperatively managed by American states, Canadian provinces, and their respective national governments on a flyway basis, which implicates a variety of parameters and inputs across the landscape between wintering and breeding grounds, but also because such a structure would create regulatory confusion. No changes were made as a result of the comment.

One commenter opposed adoption and stated that all seasons for migratory birds should be "shifted forward" by at least one week. The department disagrees with the comment and responds that the season dates as adopted represent the optimization of migration chronologies to provide the greatest migratory game bird hunting opportunity to the greatest number of hunters. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Align the season with migration patterns." The department agrees with the comment and responds that the rules as adopted are intended to take the greatest advantage of migration chronologies. No changes were made as a result of the comment.

The department received 195 comments supporting adoption of the portion of the proposed amendment to §65.316, concerning Geese, that establishes season dates and bag limits to accommodate calendar shift.

The department received 23 comments opposing the proposed amendments to §65.318, concerning Sandhill Crane, and §65.319, concerning Gallinules, Rails, Snipe, and Woodcock. Of those comments, 10 provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that the season for gallinules should begin in August. The department disagrees with the comment and responds that under the federal frameworks, the season for gallinules in Texas cannot begin before September 1. No changes were made as a result of the comment.

One commenter opposed adoption and stated that sandhill cranes seasons should begin earlier. The department disagrees with the comment and responds that the seasons as adopted are intended to provide the greatest amount of hunting opportunity for the greatest number of hunters during the peak of migration, and notes that the season in Zone C is designed to prevent, to the greatest extent possible, accidental harvest of migrating endangered whooping cranes. No changes were made as a result of the comment.

One commenter opposed adoption and stated that bag limits and season lengths for sandhill crane should be increased because of crop depredation. The department disagrees with the comment and responds that the current season lengths and bag limits are the maximum allowed under the federal frameworks, except in Zone B, where the season is truncated (from 93 days to 66 days) to protect endangered whooping cranes during migration. No changes were made as a result of the comment.

One commenter opposed adoption and stated that if the LGCO is eliminated, the season for sandhill crane should begin later and run to the end of the framework. The department disagrees with the comment and responds that the seasons as adopted are intended to provide the greatest amount of hunting opportunity for the greatest number of hunters during the peak of migration. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the bag limit in Sandhill Zone C should be increased to three. The department disagrees with the comment and responds that under the federal frameworks, the bag limit in Zone C cannot be more than two. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the sandhill crane season in Zone C should be lengthened by two weeks. The department disagrees with the comment and responds that the federal frameworks provided for a maximum of 37 days for sandhill crane hunting in Zone C. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the season for sandhill cranes should be increased because of population increase. The department disagrees with the comment and responds that the current season lengths and bag limits are the maximum allowed under the federal frameworks, except in Zone B, where the season is truncated (from 93 days to 66 days) to protect endangered whooping cranes during migration. No changes were made as a result of the comment.

One commenter opposed adoption and stated that sandhill crane seasons should be concurrent with duck seasons. The department disagrees with the comment and responds that making sandhill crane seasons concurrent with duck seasons would result in a loss of hunting opportunity because the federal frameworks allow no more than 74 days of duck hunting. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the sandhill crane season in Zone C should open the first week in December and run until the last Sunday in January and the bag limit should be increased to three. The department disagrees with the comment and responds that the federal frameworks permit a maximum of 37 days of hunting opportunity for sandhill cranes in Zone C, with a maximum bag limit of two. No changes were made as a result of the comment.

One commenter opposed adoption and stated that woodcock season should begin earlier. The department disagrees with the comment and responds that the season dates as adopted are intended to optimally distribute hunting opportunity for hunters in various parts of the state within the 45 days of hunting allowed under the federal frameworks. No changes were made as a result of the comment.

The department received 160 comments supporting adoption of the proposed amendments to §65.318, concerning Sandhill Crane, and §65.319, concerning Gallinules, Rails, Snipe, and Woodcock.

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

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

(a) Zone Boundaries.

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

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

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

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

(b) Season dates and bag limits.

(1) HPMMU.

(A) For all species other than "dusky ducks": October 26-27, 2024 and November 1, 2024 - January 26, 2025; and

(B) "dusky ducks": November 4, 2024 - January 26, 2025.

(2) North Zone.

(A) For all species other than "dusky ducks": November 9 - December 1, 2024 and December 7, 2024 - January 26, 2025; and

(B) "dusky ducks": November 14, 2024 - December 1, 2024 and December 7, 2024 - January 26, 2025.

(3) South Zone.

(A) For all species other than "dusky ducks": November 2 - December 1, 2024 and December 14, 2024 - January 26, 2025; and

(B) "dusky ducks": November 7 - December 1, 2024 and December 14, 2024 - January 26, 2025.

(4) September teal-only season.

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

(B) Dates: September 14-29, 2024.

(c) Bag limits.

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

(2) The daily bag limit during the September teal-only season is six in the aggregate.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 22, 2024.

TRD-202403257

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: September 1, 2024

Proposal publication date: February 23, 2024

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

31 TAC §65.907

The Texas Parks and Wildlife Commission in a duly noticed meeting on May 23, 2024, adopted new 31 TAC §65.907, concerning Special Take Authorization - White-tailed and Mule Deer, with changes to the proposed text, to make a correction in grammar, as published in the April 19, 2024, issue of the Texas Register (49 TexReg 2435). The rule will be republished.

The new section governs the take of white-tailed or mule deer by landowners and their agents as authorized by the department when necessary to aid or assist the department's efforts to respond to chronic wasting disease (CWD).

The Texas Legislature during the most recent regular session passed House Bill 3065, which allows the take of wildlife by persons authorized by the department to do so "as part of a program or event designated by the executive director as being conducted for the diagnosis, management, or prevention of a disease in wildlife." The rule sets forth a carefully controlled and highly regulated process under which the department would authorize persons not employed by the department to take native deer as part of department-sponsored research and management activities. Prior to the passage of H.B. 3065, if the take of a species of wildlife was regulated by a season, time of day, bag limit, or means established by the commission, only department employees or academics conducting activities under a research permit could take such wildlife in contravention of those limitations. The emergence of CWD in deer breeding facilities and epidemiologically-linked release sites deer presents unique challenges with respect to the need for prompt removal of "trace deer" (deer epidemiologically connected to a CWD-positive deer breeding facility) outside of deer hunting seasons. Prior to this rulemaking, if a release site became epidemiologically linked to a positive facility at a time of year when hunting was not lawful, there was no mechanism for the department to authorize persons not employed by the department to take deer to assist the department in disease management and research. The more expeditiously trace deer can be removed from the landscape and tested, the less likely it is that the deer, if infected with CWD, will have been able to infect additional animals or shed infectious prions at the release site. The department also could use this authority to conduct epidemiological investigations at other locations as part of a disease management response plan or to manage and reduce the occurrence of the disease.

The activities conducted under a special take authorization are not recreational hunting or traditional wildlife management, but rather they are part of the department's management efforts to facilitate disease surveillance and mitigate CWD transmission. Therefore, the provisions of the rules contain strict provisions to eliminate any possible confusion with respect to the purpose or intent of a special take authorization.

New subsection (a) sets forth the application and issuance process for special take authorizations, which include a site inspection (if deemed necessary by the department) and a stipulation that special take authorizations will be issued to named individuals only, and not to a corporation, association, or group. The department issues permits and licenses to named individuals only because it facilitates enforcement and compliance.

New subsection (b) conditions the validity of a special take authorization upon the recipient's acknowledgement, in writing, that he or she and any authorized agents have read and understand all provisions and conditions of the special take authorization. By obtaining written acknowledgment that a person to whom a special take authorization is issued (including any authorized agents) understands the rules and the conditions under which the activity is being authorized, the possibility of confusion, misunderstanding or disagreement will be reduced. The new subsection also includes a provision conditioning the validity of a special take authorization on the approval of the director of the department's law enforcement division (or designee) and the director of the department's wildlife division (or designee).

New subsection (c) stipulates that a special take authorization identify the specific deer or number of deer to be removed for testing. Trace deer, because they were breeder deer exposed to CWD prior to release, are of primary importance in an epidemiological investigation; however, if all or some trace deer cannot be located or identified it is necessary to post-mortem test additional free-ranging non-trace deer for CWD to develop an indication of whether CWD has been spread at the release site and if so, to what extent. Therefore, a special take authorization will identify specific trace deer and/or a number of other deer to be removed for testing.

New subsection (d) provides for the times, places, means, methods, and other measures to be stipulated in a special take authorization. The rule imposes limitations on the means and times of take to reduce wounding loss while still providing an efficient path for the removal of deer from the landscape; however, the high variability of geography and habitat across the state could make it necessary in some cases to authorize extraordinary means to quickly locate and dispatch deer. The new subsection stipulates that the activities authorized under a special take authorization must be conducted only by the person to whom the special take authorization is issued and any persons named in the special take authorization as agents. As noted previously, because the threat of CWD to indigenous deer populations creates a need to remove trace deer or other deer of epidemiological interest from the landscape as quickly as possible, the rules allow activities that are otherwise unlawful. To ensure that those activities are conducted appropriately, the department believes it is necessary to identify every person involved in activities under a special authorization.

New subsection (e) establishes an initial period of validity of 14 days for persons to whom a special take authorization is issued to remove the deer identified in the authorization. The new subsection also provides for extensions of validity in situations where specific deer cannot be located.

New subsection (f) stipulates the types of tissue samples to be collected and submitted under a special take authorization, requires the submission of any identifying tags, and prescribes deadlines for the submission of those items. The department believes that prompt submission of properly collected and identified epidemiologically valuable materials is crucial to the department's ability to determine disease prevalence, if any, at a release site or other location.

New subsection (g) stipulates that the owner of any tract of land where prospective special take authorization activities are to take place must be in compliance with all applicable provisions of Chapter 65, Subchapters A and B, as a condition of issuance of a special take authorization for the property, unless the department determines that the disease management value of the prospective activities warrants approval. The department believes that any person who is not compliant with applicable rules governing surveillance at release sites should not be able to obtain a benefit from the issuance of a special take authorization, unless it is in the interests of protecting a public resource to do so.

New subsection (h) requires the recipient of a special take authorization to notify the department of each deer taken under the special take authorization within 24 hours of take, which is necessary for the department to accurately and timely monitor authorized activities.

New subsection (i) prescribes disposal methods for carcasses of deer taken under a special take authorization. Because carcasses of deer taken from a location where the department believes CWD could be present have the potential to be infectious and because there is an amount of time between take and the receipt of test results, the department believes it prudent to prescribe carcass disposal requirements to minimize the infectivity potential of carcasses. The rule therefore requires carcasses to be disposed of by burial at a depth of at least three feet below ground level on the property where the take occurred, by delivery to a landfill authorized by the Texas Commission on Environmental Quality to receive such wastes; or as otherwise directed by the department in the special take authorization.

New subsection (j) conditions the issuance of a special take authorization on the applicant's agreement in writing not to record by means of video, photograph, or other electronic media the act of taking or attempting to take deer under a special take authorization, or to allow such recordings, or to make such recordings available to the public. As mentioned previously in this preamble, the department intends for the rules to function solely as a means to assist the department in disease management, research, and prevention and does not intend for the rules to provide any kind of opportunity for commercial or entertainment exploitation.

New subsection (k) provides, for purposes of explicit clarification and emphasis, that nothing in the rules is to be construed to relieve any person of the obligation to comply with any applicable municipal, county, state, or federal law, except as may be specifically authorized with respect to Parks and Wildlife Code and the regulations of the commission.

New subsection (l) explicitly identifies specific acts that the department considers serious enough to warn the recipients of special take authorizations not to engage in.

New subsection (m) conditions the validity of a special take authorization on the conduct of the person to whom the special take authorization is issued and agents of that person and provides that failure to abide by or comply with any provision of a special take authorization, as determined by the department, automatically invalidates the authorization and subjects the violator to prosecution for applicable violations of Parks and Wildlife Code, Chapters 42, 43, 61, 62, or 63 and any department regulations related to the take of deer. The department believes that it is imperative for the public to be assured that non-recreational take of a public resource is taken by the department as a serious matter, and that persons who exhibit reckless, intentional, or negligent disregard for that resource should be held to account.

The department received ten comments opposing adoption of the rule as proposed. Of those comments, five provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that prohibition of deer breeding would eliminate the threat of CWD. The department disagrees with the comment and responds that although deer breeding facilities appear to be the primary pathway by which CWD is being spread in Texas, there is no way to eliminate the threat because CWD exists in multiple locations, including free-range populations. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "Y'all have already killed more than 1,000,000 deer and destroyed ranchers herds with Y'alls BS politics. You've had plenty of deer to study. Leave ranchers alone. F'n bullies." The department disagrees with the comment and responds that in addition to making assertions that are incorrect, it indicates an unfamiliarity with the substance of the rule as proposed, as special take authorizations are not mandatory and no landowner is forced to obtain one. No changes were made as a result of the comment.

One commenter opposed adoption and stated, "I believe that the taking of deer is beyond the authority of the tpwd. This would grant them the authority to take, at will, any deer seen as a "threat" and they will be the ones who deem them so." The department disagrees with the comment and responds that the department absolutely and without question possesses the authority to take deer and in any case the rule does not affect that ability but rather, provides for the department to authorize persons not employed by the department to take specifically identified deer out of season to assist department investigations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the transport of live deer should be prohibited. The department disagrees with the comment and responds that although the cessation of deer movement via human agency would certainly result in an immediate and drastic reduction in the spread of CWD, the department believes that effective surveillance measures and cooperation from the regulated community can accomplish the same thing or close to it. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rule should allow all lawful means of take and not restrict lawful means of take to centerfire firearms. The commenter also stated opposition to the prohibition on the videorecording of permitted activities because video is necessary to inform the public about the threat of CWD. The department disagrees with the comment and responds that activities under a special authorization are not recreational hunting; thus, the department seeks to limit the means of take to the most efficient method, which is centerfire firearms (although the rules do provide for alternatives, when justified, on a case-by-case basis). The department further responds that the prohibition on recording activities under a special authorization applies to permittees, not to the department, and is necessary to prevent commercialization, sensationalization, and trivialization of a serious problem. No changes were made as a result of the comment.

The new rule is adopted under Parks and Wildlife Code, §12.013, which authorizes the commission to adopt rules governing the take of wildlife under the supervision of a department employee in a program or event designated by the director as being conducted for the diagnosis, management, or prevention of a disease in wildlife.

§65.907.Special Take Authorization - White-tailed and Mule Deer.

(a) The department may issue a special take authorization for the take of white-tailed or mule deer (hereinafter, "deer") for purposes of assisting the department in conducting wildlife disease diagnosis, management, or prevention (hereinafter, "special take authorization"), as provided in this subsection. A person may request a special take authorization by completing and submitting an application on a form supplied or approved by the department for that purpose.

(1) The department will not consider an incomplete application for a special take authorization.

(2) The department may, at its discretion, conduct a site inspection as a condition of issuance of a special take authorization.

(3) A special take authorization shall be issued only to a named individual and not in the name of any corporation, business, association, or group.

(b) A special take authorization is not valid until:

(1) the applicant has acknowledged, in writing via email to the department employee identified as the supervisory point of contact, that the applicant and all agents of the applicant have read and understand all:

(A) provisions of the special take authorization; and

(B) attendant obligations of the person to whom the special take authorization is issued and that person's agents; and

(2) it has been approved in writing by the director of the department's Wildlife Division or designee and the director of the department's Law Enforcement Division or designee.

(c) A special take authorization shall specify the number and type of deer to be taken. No deer other than the specified deer or number of deer authorized for take shall be taken.

(d) The take of deer under a special take authorization shall be:

(1) performed only by the person to whom the special take authorization is issued and/or persons identified by name on the special take authorization as agents of the person to whom the special take authorization is issued;

(2) by firearm using centerfire ammunition only;

(3) conducted during the time between 30 minutes before sunrise and 30 minutes after sunset, unless specifically authorized in writing by the department; or

(4) any other method of take as may be authorized by the department to remove specific deer.

(e) A special take authorization is valid for 14 days from the date specified in the special take authorization. The department may extend the period of validity based on extenuating or unavoidable circumstances (including inability to locate specific deer); however, a request for extension must be submitted to the department via email and approved by the department prior to the take of deer. A copy of the special take authorization or a reproduction of the special take authorization on an electronic device (such as a cell phone or tablet) shall be produced upon request of a department employee in the discharge of their official duties. A copy of the email from the department granting an extension of a special take authorization or a reproduction of that email on an electronic device (such as a cell phone or tablet) shall be produced upon request of a department employee in the discharge of their official duties.

(f) For each deer taken under a special take authorization, the following must be submitted to the Texas A&M Veterinary Medical Diagnostic Laboratory:

(1) the whole head, accompanied by all visible forms of identification borne by the deer at the time the deer was taken, including but not limited to ear tags, tattoos, RFID tags, or any other forms of identification;

(2) the medial retropharyngeal lymph nodes (MRLN), which must be collected by an accredited veterinarian, authorized department employee, or TAHC-certified CWD sample collector; and

(3) any other tissue samples, as directed by the department.

(4) A properly executed TVMDL accession form must accompany the head or tissue samples submitted under the requirements of this subsection.

(5) All tissue samples and body parts required to be submitted under this subsection must be submitted to TVMDL within two business days of completion of removal of all deer or within two business days upon conclusion of the last authorized collection date, whichever is sooner.

(6) It is an offense to remove an ear tag or deface or remove a tattoo prior to submission of deer head under this subsection.

(g) The department will not issue a special take authorization for the take of deer on any tract of land unless:

(1) the owner of the land is in compliance with all applicable provisions of Chapter 65, Subchapter A and Subchapter B, of this title; or

(2) the department determines that the disease management value of the prospective activities is a factor of such significance that approval is warranted.

(h) A deer taken during the period of validity of a special take authorization shall be reported to the department within 24 hours of removal via email or other department approved notification method to the department's wildlife division representative coordinating the authorization.

(i) Following submission to the department of any tissues or parts necessary as directed in a special take authorization, a person to whom the special take authorization or an agent thereof shall dispose of all remaining portions or parts of a deer taken under a special take authorization, either by:

(1) burial at a depth of at least three feet below ground level on the property where the take occurred;

(2) delivery to a landfill authorized by the Texas Commission on Environmental Quality to receive such wastes; or

(3) as directed otherwise by the department in the special take authorization.

(j) The department will not issue a special take authorization unless the applicant agrees in writing not to record by means of video, photograph, or other electronic media the act of taking or attempting to take deer under a special take authorization, or allow such recordings, or to make such recordings available to the public.

(k) This section shall not be construed to relieve any person of the obligation to comply with any applicable municipal, county, state, or federal law, except as may be specifically authorized with respect to Parks and Wildlife Code and the regulations of the commission.

(l) It is an offense for any person to:

(1) take or attempt to take a deer under a special take authorization without possessing a hunting license valid for the take of deer in Texas;

(2) sell, barter, offer to sell or barter, or otherwise give or receive anything of value in exchange for taking or allowing the take of deer or any parts of the animal, including antlers, under a special take authorization.

(m) The validity of a special take authorization is completely conditioned on the conduct of the person to whom the special take authorization is issued and agents of that person. Failure to abide by or comply with any provision of a special take authorization, as determined by the department, automatically invalidates the authorization and subjects the violator to prosecution for applicable violations of Parks and Wildlife Code, Chapters 42, 43, 61, 62, or 63 and any department regulations related to the take of deer.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 22, 2024.

TRD-202403258

Todd S. George

Assistant General Counsel

Texas Parks and Wildlife Department

Effective date: August 11, 2024

Proposal publication date: April 19, 2024

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

CHAPTER 365. RURAL WATER ASSISTANCE FUND

The Texas Water Development Board (TWDB) adopts 31 Texas Administrative Code §§365.2, 365.3, 365.5, 365.21 - 365.23, 365.41, and 365.43 - 365.45.

Section 365.22 and §365.41 are adopted with changes as published in the April 26, 2024, issue of the Texas Register (49 TexReg 2680). The rules will be republished.

Sections 365.2, 365.3, 365.5, 365.21, 365.23, 365.43, 365.44, and 365.45 are adopted without changes as published in the April 26, 2024, issue of the Texas Register (49 TexReg 2680). The rules will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED AMENDMENT.

Chapter 365 contains the agency's programmatic rules related to the Rural Water Assistance Fund.

The adopted amendments implement legislation and clarify the method in which interest rates will be set for loans when the source of funding is other than bond proceeds. Additionally, the adopted amendments modernize the language, provide consistency with TWDB's general financial assistance programs' rules, and clarify requirements for borrowers.

Senate Bill 469, 88th R.S. (2023), amended Chapters 15 and 17 of the Water Code by adding a general definition of "rural political subdivision." This general definition replaces the current definition applicable to the Rural Water Assistance Fund. The adopted amendments implement SB 469's definition of "rural political subdivision" applicable to the Rural Water Assistance Fund.

Senate Bill 28, 88th R.S. (2023), amended Chapter 15 of the Water Code to authorize the TWDB to use money in the Rural Water Assistance Fund to contract for outreach, financial, planning, and technical assistance to assist rural political subdivisions for a purpose described by Section 15.994 (Use of Fund), including obtaining and using financing from funds and accounts administered by TWDB. The adopted amendment in 31 Texas Administrative Code §365.3 implements SB 28's expansion of allowable technical assistance applicable to the Rural Water Assistance Fund.

31 Texas Administrative Code §365.5 contains rules related to the setting of interest rates. Under the adopted amendment, the Executive Administrator determines the lending rate scales for loans funded by a source other than bond proceeds.

These adopted amendments include substantive and non-substantive changes and updates to make Chapter 365 more consistent with TWDB rules and to clarify requirements for TWDB borrowers.

SECTION BY SECTION DISCUSSION OF ADOPTED AMENDMENTS.

Chapter 365 Rural Water Assistance Fund

Subchapter A. Introductory Provisions

Section 365.2. Definitions of Terms.

The adopted amendment revises the definition of rural political subdivision in §365.2(6) to implement SB 469. The amendment includes as a rural political subdivision those municipalities with a population of 10,000 or less.

Section 365.3. Use of Funds.

The adopted amendment revises §365.3(c) to implement SB 28's technical assistance requirements applicable to the Rural Water Assistance Fund, which broadens the TWDB's authority to provide technical assistance.

Section 365.5. Interest Rates for Loans.

The adopted amendment addresses the setting of interest rates for loans funded by a source other than bond proceeds. For loans funded by a source other than bond proceeds the Executive Administrator will determine the lending rate scale.

Subchapter B. Application Procedures

Section 365.21. Preapplication Meeting.

The adopted amendment requires an applicant to schedule a preapplication conference with board staff.

Section 365.22. Application for Assistance.

The adopted amendment modernizes the rule language, provides consistency with TWDB's general financial assistance programs' rules, and clarifies requirements for borrowers. The amendment removes the requirement that an application be in writing and replaces it with the requirement that an application be in the form and numbers prescribed by the executive administrator. The adopted amendment deletes the list of information required for an application to be considered an administratively complete and instead cites to 31 Texas Administrative Code §363.12 for the applicable requirements. The adopted amendment clarifies that the executive administrator may request any additional information needed to evaluate an application and may return an incomplete application.

Section 365.23. Pre-design Funding Option.

The adopted amendment modernizes the rule language, provides consistency with TWDB's general financial assistance programs' rules, and corrects citations.

Subchapter C. Closing and Release of Funds

Section 365.41. Loan Closing.

The adopted amendment modernizes the rule language, provides consistency with TWDB's general financial assistance programs' rules, and clarifies requirements for borrowers. The adopted amendment requires the transcript of proceedings within 60 days of closing. The adopted amendment removes the requirement of obtaining an opinion from a Water Supply Corporation's or Sewer Service Corporation's attorney when a loan agreement and promissory note are used for closing. The adopted amendment allows for Water Supply Corporations and Sewer Service Corporations whose total outstanding loans with the TWDB do not exceed $1,000,000 to satisfy the annual financial audit requirement by submitting an annually filed Internal Revenue Form 990. The adopted amendment clarifies that the requirement to comply with requirements for continuing disclosure on an ongoing basis substantially in the manner required by the Securities and Exchange Commission rule 15c2-12 only applies if the rural political subdivision is issuing bonds or other authorized securities.

Section 365.43. Release of Funds.

The adopted amendment modernizes the rule language, provides consistency with TWDB's general financial assistance programs' rules, clarifies requirements for borrowers, and corrects citations. Under the adopted amendment for release of funds for building purposes, prior executive administrator approval is required if the applicant is relying on evidence of its legal authority to complete necessary acquisitions. The adopted amendment clarifies, for projects constructed through one or more construction contracts, that the executive administrator may approve the release of funds only for a construction contract that has been approved for construction.

Section 365.44. Loan Agreements for Nonprofit Water Supply or Sewer Service Corporations.

The adopted amendment deletes the current list of information required and cites to §15.996 of the Water Code for applicable requirements.

Section 365.45. Engineering Design Approvals.

The adopted amendment modernizes the rules language, deletes the current list of information required, and cites to 31 Texas Administrative Code §363.41 for applicable contract document requirements.

REGULATORY IMPACT ANALYSIS DETERMINATION (Texas Government Code §2001.0225)

The TWDB reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code §2001.0225 and determined that the rulemaking is not subject to Texas Government Code §2001.0225, because it does not meet the definition of a "major environmental rule" as defined in the Administrative Procedure Act. A "major environmental rule" is defined as a rule with the specific intent to protect the environment or reduce risks to human health from environmental exposure, a rule that may adversely affect in a material way the economy or a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The intent of the adopted rulemaking is to clarify eligibility, requirements, and methodology for TWDB borrowers.

Even if the adopted rulemaking were a major environmental rule, Texas Government Code §2001.0225 still would not apply to this rulemaking because Texas Government Code §2001.0225 only applies to a major environmental rule, the result of which is to: (1) exceed a standard set by federal law, unless the rule is specifically required by state law; (2) exceed an express requirement of state law, unless the rule is specifically required by federal law; (3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or (4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability criteria because it: (1) does not exceed any federal law; (2) does not exceed an express requirement of state law; (3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; and (4) is not proposed solely under the general powers of the agency, but rather Texas Water Code §15.995. Therefore, this adopted rulemaking does not fall under any of the applicability criteria in Texas Government Code §2001.0225.

TAKINGS IMPACT ASSESSMENT (Texas Government Code §2007.043)

The TWDB evaluated this adopted rulemaking and performed an analysis of whether it constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of this rulemaking is to clarify eligibility, requirements, and methodology for TWDB borrowers. The adopted rules would substantially advance this stated purpose by aligning the rule's definitions and permissible use of funds with Water Code, Chapter 15, clarifying how interest rates will be set for TWDB borrowers, and providing greater consistency between TWDB program rules.

The TWDB's analysis indicates that Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by state law, which is exempt under Texas Government Code §2007.003(b)(4). The TWDB is the agency that implements the Rural Water Assistance Fund Program.

Nevertheless, the TWDB further evaluated this adopted rulemaking and performed an assessment of whether it constitutes a taking under Texas Government Code Chapter 2007. Promulgation and enforcement of this rulemaking would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted rulemaking does not affect a landowner's rights in private real property because this rulemaking does not burden, restrict, or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulation. In other words, this rulemaking is merely an amendment to conform with statutory changes and clarify program methodology. It does not require regulatory compliance by any persons or political subdivisions. Therefore, the adopted rulemaking does not constitute a taking under Texas Government Code, Chapter 2007.

PUBLIC COMMENTS (Texas Government Code §2001.033(a)(1))

The following comments were received from the Texas Rural Water Association (TRWA).

Regarding

Section 365.3 Use of Funds.

Comment

The TRWA commented that one of the permissible uses of Rural Water Assistance Fund (RWAF) is for interim financing of construction projects. The TRWA comments there is not an expedited application process under the rules to accommodate this use. The TRWA requests the TWDB to promulgate rules that would implement an expedited application process for interim funding.

Response

TWDB appreciates this comment. No changes were made in response to this comment. The TWDB notes that it anticipates RWAF funds to be limited and available on a competitive basis and therefore interim financing is not a feasible approach under the program at this time.

Regarding

Section 365.22 Application for Assistance.

Comment

The TRWA commented that the application requirements pertaining to the Preliminary Engineering Feasibility Report and Environmental Assessment increase the cost of RWAF applications and add unnecessary burden and complication for small rural projects. The TRWA requested that the Preliminary Engineering Feasibility Report and Environmental Assessment requirements be omitted from the RWAF application process.

Response

The TWDB appreciates this comment. No direct changes have been made in response to this comment, but the TWDB notes the rule has been modified to delete the list of information required for an application to be considered administratively complete and instead cites to 31 Texas Administrative Code §363.12 for the applicable requirements. The TWDB notes that under 31 Texas Administrative Code §363.14, only preliminary environmental data is required at the application phase for projects that qualify for pre-design funding. The TWDB additionally notes that it is considering revisions to the Preliminary Engineering Feasibility Report and Environmental Assessment sections under 31 Texas Administrative Code §363.13 and §363.14. The TWDB notes that RWAF funding can be utilized for costs related to preparing an RWAF application, including the preparation of the Preliminary Engineering Feasibility Report and requirements related to an Environmental Assessment.

Comment

The TRWA commented that under the current rules, RWAF financing is not available to Rural Political Subdivisions with compliance issues as the application requires a certification that a system is currently, and will remain, in compliance.

Response

The TWDB appreciates this comment. No direct changes have been made in response to this comment, but the TWDB notes the rule has been modified to delete the list of information required for an application to be considered administratively complete and instead cites to 31 Texas Administrative Code §363.12 for the applicable requirements. The TWDB notes that the application affidavit requirement includes a certification in which the applicant can identify compliance issues. The TWDB notes that RWAF projects can include projects intended to address compliance issues if identified on the application affidavit. The TWDB notes that it is considering revisions to 31 Texas Administrative Code §363.12 for clarification.

Regarding

Section 365.41 Loan Closing.

Comment

The TRWA commented that requiring a financial audit for the life of an RWAF loan imposes a significant expense on Water Supply Corporations (WSCs) and Sewer Supply Corporations (SSCs). Additionally, the TRWA commented that rural WSCs and SSCs may have trouble locating and retaining an accounting firm to perform these types of audits. The TRWA suggests that the rule be amended to provide that WSCs and SSCs may instead submit annual certified financial statements.

Response

The TWDB appreciates this comment. The rules have been modified to allow for Water Supply Corporations and Sewer Service Corporations whose total outstanding loans with the TWDB do not exceed $1,000,000 to satisfy the annual financial audit requirement by submitting an annually filed Internal Revenue Form 990.

Comment

The TRWA commented that the requirement to disclose financial information and events, on an ongoing basis, substantially in the manner of the Securities and Exchange Commission (SEC) rule 15c2-12 has little bearing on WSCs and SSCs. The TRWA commented that WSCs and SSCs should be exempt from this requirement.

Response

The rules have been modified to clarify that the requirement for continuing disclosure substantially in the manner of the Securities and Exchange Commission (SEC) rule 15c2-12 only applies when a rural political subdivision is issuing bonds or other authorized securities. In the case of WSCs or SSCs who issues bonds or other authorized securities, the requirement enables TWDB to meet its continuing disclosure obligations if a WSC or SSC were to become a significant borrower.

Comment

The TRWA commented that omitting the loan closing requirement that WSCs and SSCs produce an opinion from its attorney that is acceptable to the Executive Administrator would lower the cost of closings.

Response

The rules have been modified to remove the requirement of an attorney opinion when a loan agreement and promissory note are used for closing.

SUBCHAPTER A. INTRODUCTORY PROVISIONS

31 TAC §§365.2, 365.3, 365.5

STATUTORY AUTHORITY (Texas Government Code §2001.033(a)(2))

The amendment is adopted under the authority of Texas Water Code §6.101, which provides the TWDB with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and also under the authority of Water Code §15.995.

This rulemaking affects Texas Water Code, Chapter 15.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 25, 2024.

TRD-202403369

Ashley Harden

General Counsel

Texas Water Development Board

Effective date: August 14, 2024

Proposal publication date: April 26, 2024

For further information, please call: (512) 463-6072

31 TAC §§365.21 - 365.23

STATUTORY AUTHORITY (Texas Government Code §2001.024(a)(3))

The amendment is proposed under the authority of Texas Water Code §6.101, which provides the TWDB with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and also under the authority of Texas Water Code §15.995.

This rulemaking affects Water Code, Chapter 15.

§365.22.Application for Assistance.

(a) An application must be in the form and numbers prescribed by the executive administrator.

(b) The executive administrator may request any additional information needed to evaluate the application and may return any incomplete applications.

(c) The information required under §363.12 of this title (relating to General, Legal, and Fiscal Information) is required on all applications to the board for financial assistance to be considered an administratively complete application.

(d) A rural political subdivision may enter into an agreement with a federal agency, a state agency, or another rural political subdivision to submit a joint application for financial assistance under this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 25, 2024.

TRD-202403370

Ashley Harden

General Counsel

Texas Water Development Board

Effective date: August 14, 2024

Proposal publication date: April 26, 2024

For further information, please call: (512) 463-6072

31 TAC §§365.41, 365.43 - 365.45

STATUTORY AUTHORITY (Texas Government Code §2001.024(a)(3))

The amendment is proposed under the authority of Texas Water Code §6.101, which provides the TWDB with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and also under the authority of Texas Water Code §15.995.

This rulemaking affects Water Code, Chapter 15.

§365.41.Loan Closing.

(a) Instruments Needed for Closing. The documents which shall be required at the time of closing include the following:

(1) if not closing under the pre-design funding option, evidence that requirements and regulations of all identified local, state and federal agencies having jurisdiction have been met, including but not limited to permits and authorizations;

(2) a certified copy of the bond ordinance, order or resolution adopted by the governing body authorizing the issuance of debt to be sold to the board, or an executed promissory note and loan agreement, that is acceptable to the executive administrator and which must have sections providing as follows:

(A) if loan proceeds are to be deposited into an escrow account, at the closing on all or a portion of the loan or grant, then an escrow account must be created that must be separate from all other accounts and funds, as follows:

(i) the account must be maintained by an escrow agent as defined in §363.2 of this title (relating to Definitions of Terms);

(ii) funds must not be released from the escrow account without written approval by the executive administrator;

(iii) upon request of the executive administrator, the escrow account statements must be provided to the executive administrator;

(iv) the investment of any loan or grant proceeds deposited into an escrow account must be handled in a manner that complies with the Public Funds Investment Act, Texas Government Code, Chapter 2256; and

(v) the escrow account must be adequately collateralized in a manner sufficient to protect the board's interest in the project and that complies with the Public Funds Collateral Act, Texas Government Code, Chapter 2257;

(B) that a construction account must be created, which must be separate from all other accounts and funds of the applicant;

(C) that a final accounting be made to the board of the total sources and authorized use of project funds within 60 days of the completion of the project and that any surplus loan funds be used in a manner as approved by the executive administrator;

(D) that an annual audit of the rural political subdivision, prepared in accordance with generally accepted auditing standards by a certified public accountant or licensed public accountant be provided annually to the executive administrator, or if a promissory note and loan agreement is used and the rural political subdivision is a Water Supply Corporation or Sewer Service Corporation, then in lieu of an annual audit a filed Internal Revenue Service Form 990 may be provided annually so long as the balance of all outstanding loans from the board to the Water Supply Corporation or Sewer Service Corporation does not exceed $1,000,000;

(E) that the rural political subdivision must fix and maintain rates and collect charges to provide adequate operation, maintenance and insurance coverage on the project in an amount sufficient to protect the board's interest;

(F) that the rural political subdivision must document the adoption and implementation of an approved water conservation program for the duration of the loan, in accordance with §363.15 of this title;

(G) that the rural political subdivision must maintain current, accurate and complete records and accounts in accordance with generally accepted accounting principles necessary to demonstrate compliance with financial assistance related legal and contractual provisions;

(H) that the rural political subdivision covenants to abide by the board's rules and relevant statutes, including the Texas Water Code, Chapters 15 and 17;

(I) if the rural political subdivision is issuing bonds or other authorized securities, that the rural political subdivision or an obligated person for whom financial or operating data is presented, will undertake, either individually or in combination with other issuers of the rural political subdivision's obligations or obligated persons, in a written agreement or contract to comply with requirements for continuing disclosure on an ongoing basis substantially in the manner required by Securities and Exchange Commission (SEC) rule 15c2-12 and determined as if the board were a Participating Underwriter within the meaning of such rule, such continuing disclosure undertaking being for the benefit of the board and the beneficial owner of the rural political subdivision's obligations, if the board sells or otherwise transfers such obligations, and the beneficial owners of the board's obligations if the rural political subdivision is an obligated person with respect to such obligations under rule 15c2-12;

(J) that all payments must be made to the board via wire transfer or in a manner acceptable to the Executive Administrator at no cost to the board;

(K) that the partial redemption of bonds or other authorized securities be made in inverse order of maturity;

(L) that insurance coverage be obtained and maintained in an amount sufficient to protect the board's interest in the project;

(M) that the rural political subdivision must establish a dedicated source of revenue for repayment; and

(N) any other recitals mandated by the executive administrator;

(3) evidence that the rural political subdivision has adopted a water conservation program in accordance with §363.15 of this title (relating to Required Water Conservation Plan);

(4) an unqualified approving opinions of the attorney general of Texas and a certification from the comptroller of public accounts that such debt has been registered in that office;

(5) if obligations are issued, an unqualified approving opinion by a recognized bond attorney acceptable to the executive administrator;

(6) executed escrow agreement entered into by the entity and an escrow agent satisfactory to the executive administrator, in the event that funds are escrowed, or a certificate of trust as defined in §363.2 of this title, if applicable; and

(7) other or additional data and information, if deemed necessary by the executive administrator.

(b) Certified Transcript. Within 60 days of closing, the rural political subdivision must submit a transcript of proceedings relating to the debt purchased by the board which must contain those instruments normally furnished a purchaser of debt.

(c) Additional Closing Requirements for Bonds. A rural political subdivision will be required to comply with the following closing requirements if the applicant issues obligations that are purchased by the board:

(1) all bonds must be closed in book-entry-only form;

(2) the rural political subdivision must use a paying agent/registrar that is a depository trust company (DTC) participant;

(3) the rural political subdivision must be responsible for paying all DTC closing fees assessed to the rural political subdivision by the board's custodian bank directly to the board's custodian bank;

(4) the rural political subdivision must provide evidence to the board that one fully registered bond has been sent to the DTC or to the rural political subdivision's paying agent/registrar prior to closing; and

(5) the rural political subdivision must provide a private placement memorandum containing a detailed description of the issuance of debt to be sold to the board that is acceptable to the executive administrator.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 25, 2024.

TRD-202403371

Ashley Harden

General Counsel

Texas Water Development Board

Effective date: August 14, 2024

Proposal publication date: April 26, 2024

For further information, please call: (512) 463-6072