Presenter: Vernon Bevill

Commission Agenda Item No. 9
Action
1999-2000 Migratory Game Bird Proclamation
Late Season and Baiting Provisions
August 1999

I. Discussion: Responsibility for establishing seasons, bag limits, means, methods, and devices for harvesting migratory game birds within U.S. Fish and Wildlife Service (Service) frameworks is delegated to the Commission under Chapter 64, Subchapter C, Parks and Wildlife Code. Parks and Wildlife Code, §64.022 authorizes the Executive Director, after notification of the Chairman, to engage in rulemaking. Staff received permission from the Regulations Committee at its April 1999 meeting to publish the proposed regulations (located at Exhibit A) in the Texas Register for public comment. The proposed regulations appeared in the April 30, 1999 issue of the Texas Register (24 TexReg 3300). Staff has gathered and analyzed public comment, and a summary will be available at the time of the meeting. The Service frameworks for late-season species will be released during the first week in August, so staff will brief the Commission on any changes made by the Service at the time of the hearing.

Additionally, staff will brief the Commission on rulemaking undertaken by the Executive Director under the provisions of Parks and Wildlife Code, Chapter 64, to implement recent changes to federal law concerning baiting of migratory game birds. Proposed amendments to the state’s baiting regulations (located at Exhibit B) were published in the July 9, 1999, issue of the Texas Register (24 TexReg 5147), and were adopted after notification of the Chairman prior to the August Commission hearing.

II. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §65.318 and §65.320, concerning the late-season provisions of the Migratory Game Bird Proclamation, with changes to the proposed text (located at Exhibit A) as published in the April 30, 1999, issue of the Texas Register (24 TexReg 3300)."

Attachments - 3

1. Exhibit A - Proposed Late Season Migratory Game Bird Regulations
2. Exhibit B - Proposed Baiting Regulations
3. Exhibit C - Fiscal Note (Exhibit C- Available Upon Request)


Commission Agenda Item No. 9
Exhibit A

Migratory Game Bird Proclamation
Proposed Late Season Provisions

§65.318. Open Seasons and Bag and Possession Limits - Late Season. Except as specifically provided in this section, the possession limit for all species listed in this section shall be twice the daily bag limit.

(1) Ducks, mergansers, and coots. The daily bag limit for ducks is six, which may include no more than five mallards or Mexican mallards (Mexican duck), only two of which may be hens, one mottled duck, one pintail, two redheads, one canvasback, and two wood ducks. The daily bag limit for coots is 15. The daily bag limit for mergansers is five, which may include no more than one hooded merganser.

(A) High Plains Mallard Management Unit: October 16-19, 1999 [17-20, 1998], and October 23, 1999 [24, 1998] - January 16, 2000 [17, 1999].

(B) North Zone: October 30 [31] - November 7, 1999 [8, 1998], and November 13, 1999 [14, 1998] - January 16, 2000 [17, 1999].

(C) South Zone: October 23 [24] - November 28, 1999 [29, 1998], and December 11, 1999 [12, 1998] - January 16, 2000 [17, 1999].

(2) Geese.

(A) Western Zone.

(i) Light geese: October 30, 1999 [31, 1998] - February 13, 2000 [14, 1999]. The daily bag limit for light geese is 20, and there is no possession limit.

(ii) Dark geese: October 30, 1999 [31, 1998] - February 13, 2000 [14, 1999]. The daily bag limit for dark geese is five, which may not include more than four Canada geese and one white-fronted goose.

(B) Eastern Zone.

(i) Light geese: October 30, 1999 [31, 1998] - February 13, 2000 [14, 1999]. The daily bag limit for light geese is 20, and there is no possession limit.

(ii) Dark geese:

(I) White-fronted geese: October 23, 1999 [24, 1998] - January 16, 2000 [17, 1999]. The daily bag limit for white-fronted geese is one.

(II) Canada geese and brant: October 30, 1999 [31, 1998] - January 30, 2000 [31, 1999]. The daily bag limit is one Canada goose or one brant, except during the period from January 17-30 [18-31], when the bag limit is two in the aggregate.

(3) Special Youth-Only Season. There shall be a special youth-only duck season during which the hunting, taking, and possession of ducks, mergansers, and coots is restricted to licensed hunters 15 years of age and younger accompanied by a person 18 years of age or older. Bag and possession limits in any given zone during the season established by this paragraph shall be as provided for that zone by paragraph (1) of this section. Season dates are as follows:

(A) High Plains Mallard Management Unit: October 9, 1999 [10, 1998];

(B) North Zone: October 23, 1999 [24, 1998]; and

(C) South Zone: October 16, 1999 [17, 1998].

§65.320. Extended Falconry Season - Late Season Species.

(a) It is lawful to take the species of migratory birds listed in this section by means of falconry during the following Extended Falconry Seasons. Ducks, coots, and mergansers:

(1) High Plains Mallard Management Unit: no extended falconry season; and

(2) Remainder of the state: January 17 [18] - February 1, 2000 [2, 1999].

(b) (No change.)


Commission Agenda Item No. 9
Exhibit B

Migratory Game Bird Proclamation
Baiting Provisions
Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §65.309 and 65.310, concerning the Migratory Game Bird Proclamation. The amendments are necessary to adjust the state’s baiting regulations to conform with recent rulemaking by the U.S. Fish and Wildlife Service. The amendment to §65.309, concerning Definitions, adds definitions for new regulatory terminology. The amendment to §65.310, concerning Means, Methods, and General Requirements, establishes those practices or activities which may be lawfully conducted and those practices or activities that would constitute the offense of baiting migratory game birds.

2. Fiscal Note.

Robert Macdonald, Wildlife Division regulations coordinator, has determined that for each of the first five years that the proposed rules are in effect, there will be no additional fiscal implications to state or local governments as a result of enforcing or administering the proposed amendment.

3. Public Benefit - Cost Note.

Mr. Macdonald also has determined that for each of the first five years the amendments as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing the rules as proposed will be the department's discharge of its statutory obligation to manage and conserve the state's populations of migratory game birds, implementation of commission policy to maximize recreational opportunity for the citizenry, and consistency with federal regulations governing the hunting of migratory game birds.

(B) There will be no effect on small businesses. There are no additional economic costs to persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as this agency has determined that the rules as proposed will not impact local economies.

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

4. Request for Public Comments.

Comments on the proposed rules may be submitted to Vernon Bevill, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4578 or 1-800-792-1112.

5. Statutory Authority.

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

The amendments affect Parks and Wildlife Code, Chapter 64, Subchapter C.

§65.309. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation).

(1) Baited area—Any area where salt, grain, [shelled, shucked, or unshucked corn, wheat, or other grain, salt,] or other feed has been [capable of luring, attracting, or enticing such birds is directly or indirectly] placed, exposed, deposited, distributed, or scattered, if that salt, grain, or other feed could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them. Any such area will remain a baited area for ten days following the complete removal of all such salt, grain, or other feed.[; and the area shall remain a baited area for ten days following complete removal of all such corn, wheat, or other grain, salt or other feed].

(2) Baiting—The direct or indirect placing, exposing, depositing, distributing, or scattering of salt, grain, [shelled, shucked, or unshucked corn, wheat, or other grain, salt,] or other feed that could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them[so as to constitute for migratory game birds a lure, attraction, or enticement to, on, or over areas when hunters are attempting to take such birds].

(3) - (6) (No change.)

(7) Livestock feeding operation – Any entity or activity operating under a permit pursuant to 30 TAC Chapter 321, Subchapter B (relating to Concentrated Animal Feeding Operations).

(8) Manipulation - The alteration of natural vegetation or agricultural crops, including but not limited to mowing, shredding, discing, rolling, chopping, trampling, flattening, burning, and herbicide treatments. Manipulation does not include the distributing or scattering of grain, seed, or other feed after removal from or storage on the field where grown.

(9) Natural vegetation - Any non-agricultural, native, or naturalized plant species that grows at a site in response to planting or from existing seeds or propagule. Natural vegetation does not include planted millet. However, planted millet that grows on its own in subsequent years after the planting is considered natural vegetation.

(10) [(7)] Nontoxic shot—Any shot approved by the director, U.S. Fish and Wildlife Service.

(11) Normal agricultural planting, harvesting, or post-harvest manipulation - A planting or harvesting undertaken for the purpose of producing or gathering a grain, or manipulation after such harvest and removal of a grain, that is conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.

(12) Normal soil stabilization practice - a planting for agricultural soil erosion control or post-mining land reclamation conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.

(13) [(8)] Personal residence—One's principal or ordinary home or dwelling place. The term does not include a temporary or transient place of residence or dwelling such as a hunting club, or any club house, cabin, tent, or trailer house used as a hunting club, or any hotel, motel, or rooming house used during a hunting, pleasure, or business trip.

(14) [(9)] Sinkbox—Any type of low floating device having a depression which affords the hunter a means of concealing himself below the surface of water.

(15) Waterfowl - ducks (including teal), geese, and coots.

(16) [(10)] Wildlife resource—For the purposes of this subchapter, wildlife resource includes all migratory birds.

§65.310. Means, Methods, and Special Requirements.

(a) The following means and methods are lawful, subject to control of subsection (b) of this section, in the taking of migratory game birds:

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

(4) taking on or over unbaited areas, including:

(A) standing crops or flooded standing crops (including aquatics);

(B) standing, flooded, or manipulated natural vegetation;

(C) flooded harvested cropland;

(D) lands or areas where seeds or grains have been scattered solely as a result of a normal agricultural planting, harvesting, or post-harvest manipulation;

(E) normal soil stabilization practice;

(F) from a blind or other place of concealment camouflaged with natural vegetation;

(G) from a blind or other place of concealment camouflaged with vegetation from agricultural crops, as long as such camouflaging does not result in the exposing, depositing, distributing, or scattering of grain or other feed;

(H) standing crops or flooded standing agricultural crops where grain has been inadvertently scattered as a result of a hunter entering or exiting a hunting area, placing decoys, or retrieving downed birds.

(5) except for waterfowl and cranes, the taking of migratory birds on or over lands or areas that are not otherwise baited areas, and where grain or other feed has been distributed or scattered solely as the result of manipulation of an agricultural crop or other feed on the land where grown or solely as the result of a livestock feeding operation as defined in §65.309(7) of this title (relating to Definitions).

(6) [(5)] taking by the use of power boats, sailboats, or other craft when used solely as a means of picking up dead or injured birds; and

(7) [(6)] paraplegics and single or double amputees of the legs may take migratory game birds from any stationary motor vehicle or motor-driven land conveyance.

(8) [(7)] taking by means of falconry, but the hunting is limited to persons holding valid falconry permits issued under the authority of Parks and Wildlife Code, Chapter 49.

(b) The following means and methods are unlawful in the taking of migratory game birds:

(1)-(6) (No change.)

(7) by the aid of baiting, or on or over any baited area, or where migratory birds are lured, attracted, or enticed by bait where a person knows or reasonably should know that the area has been baited. [However, nothing in this subsection shall prohibit: ]

[(A) the taking of migratory game birds, including waterfowl, on or over standing crops, flooded standing crops (including aquatics), flooded harvested croplands, grain crops properly shocked on the field where grown, or grains found scattered solely as the result of normal agricultural planting or harvesting;]

[(B) the taking of migratory game birds, except waterfowl, on or over lands where shelled, shucked, or unshucked corn, wheat, or other grain, salt, or other feed that] has been distributed or scattered as the result of bona fide agricultural operations or procedures, or as a result of manipulation of a crop or other feed on the land where grown for wildlife management purposes; provided that manipulation for wildlife management purposes does not include the distributing or scattering of grain or other feed once it has been removed from or stored on the field where grown; and]

[(C) the taking of migratory game birds on or over moist soil or aquatic vegetation manipulated by any means.]

(8) the hunting of waterfowl or cranes on or over:

(A) manipulated, planted millet, unless the millet was planted not less than one year before hunting; or

(B)crops that have been manipulated, unless the manipulation is a normal agricultural planting, harvest, or post-harvest manipulation.

(9) the placing or directing the placement of bait on or adjacent to an area for the purpose of causing, inducing, or allowing any person to take or attempt to take any migratory game bird by the aid of baiting on or over the baited area.

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

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


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