Commission Agenda Item No. 6
Presenters:  Scott Vaca
Alan Cain
Robert Perez

Action
2012-2013 Statewide Hunting Proclamation
March 29, 2012

I.       Executive Summary:  This item presents the proposed 2012-2013 Statewide Hunting Proclamation for adoption.  The proposed amendments would:

II.      Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61. Parks and Wildlife Code, Chapter 67, requires the commission by regulation to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species. The changes to the rules are based upon statutory requirements, Commission policy, staff recommendations, and suggestions from the regulated community, including scientific investigation and required findings of fact where applicable. The changes are intended increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

The Regulations Committee at its January, 2012, meeting authorized staff to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the February 17, 2012, issue of the Texas Register (37 TexReg 880). A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.     Recommendation:  Staff recommends that the commission adopt the proposed motion:

        

“The Texas Parks and Wildlife Commission adopts amendments to §§65.7, 65.8, 65.11, 65.25, 65.42, and 65.60, concerning the Statewide Hunting Proclamation, with changes as necessary to the proposed text as published in the February 17, 2012, issue of the Texas Register (37 TexReg 880).”

Attachments – 1

  1. Exhibit A – Proposed Hunting Rules

Commission Agenda Item No. 6
Exhibit A

2012-2013 STATEWIDE HUNTING PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (the department, or TPWD) proposes amendments to §§65.7, 65.8, 65.11, 65.25, 65.42, and 65.60, concerning the Statewide Hunting Proclamation.

         The proposed amendments to §65.7, concerning Harvest Log, and §65.8, concerning Alternative Licensing System, would remove references to tarpon and red drum. In 2010 the department restructured hunting and fishing regulations to separate hunting rules from fishing rules. In the process, the department overlooked references to tarpon and red drum in regulations addressing the license log and the alternative licensing system. Those references are not germane to hunting. The proposed amendment corrects that oversight.

         The proposed amendment to §65.11, concerning Lawful Means, would allow the use of firearm silencers to hunt alligators, game animals and game birds. Under current rule, the use of sound-suppressing devices to hunt alligators, game animals or game birds is unlawful. The department has determined that there is no resource- or enforcement-related reason to prohibit the use of firearm silencers for the take of alligators, game animals or game birds, and therefore proposes to eliminate the current prohibition. The proposed rule also would specifically state that the rule does not relieve any person of the obligation to comply with any applicable state, federal, or local law governing the possession or use of firearm silencers. The proposed amendment also alters §65.11(3) to include additional counties to the applicability of the provisions governing the use of crossbows and eliminates references to specific season dates. This change is necessary to ensure consistency with the changes to §65.42 discussed elsewhere in this preamble.

         The proposed amendment to §65.25, concerning Wildlife Management Plan (WMP) would remove provisions concerning WMP issuance for the hunting of lesser prairie chicken. In response to declines in lesser prairie chicken populations, the department in 2005 prohibited the take of lesser prairie chicken except on properties managed under a WMP for lesser prairie chicken. In response to continuing population declines the department in 2009 completely closed the season on lesser prairie chicken statewide. The provisions of §65.25(b) were retained at that time with the intent that if lesser prairie chicken populations recovered within the near future, the department would be able to reinstitute limited hunting opportunity on managed lands; however, the department has determined that population recovery is now a long-term conservation goal and the presence of the regulations is confusing to the public, since it would appear that there is hunting opportunity available, in spite of the closed season. The department therefore proposes to eliminate current §65.25(b).

         The proposed amendment to §65.42, concerning Deer, would alter the current season structure in Grayson County by allowing full-season, either-sex harvest, implementing the Grayson County deer season structure in Dallas, Collin, and Rockwall counties, and implementing the Harris County season structure  in Galveston County.         In 2010 the department received a petition for rulemaking requesting the implementation of a full-length open season for white-tailed deer in Collin and Rockwall counties, during which the lawful means would be restricted to archery equipment. The deer season in Collin and Rockwall counties has been closed since 1976. The original tallgrass prairie ecosystem in the area was virtually eliminated by agricultural development in the early part of the 20th century, resulting in the near-obliteration of white-tailed deer habitat, primarily in wooded bottomlands that were ideal for crop cultivation and timber exploitation. Since that time, agriculture has been gradually displaced by the extensive urban, suburban, and exurban growth of the Metroplex, which has resulted in highly fragmented habitat and minimal populations of white-tailed deer, mostly in riparian areas surrounding lakes and streams. The department believes that there is no biological reason to prohibit hunting and this is an opportunity to increase hunting opportunity. Opening a season would also provide an additional method for addressing nuisance deer issues. Given the continued urbanization of these counties, the sparse deer habitat that currently exists is expected to continue to decline in the future. Although areas of non-deer habitat, such as residential landscapes in subdivisions may artificially support deer within these counties, it is not biologically responsible to encourage the growth of deer herds within these non-native habitats. Supporting deer populations beyond what native habitat is able to support will lead to further habitat degradation, ultimately affecting habitat quantity and quality for all wildlife species that utilize those native habitats. Since the counties in question, along with Dallas County, are ecologically similar to Grayson County, where there is an archery season (during which crossbows are lawful only by hunters with an upper-limb disability) and a general season restricted to archery equipment including crossbows, the department proposes to implement the Grayson County season structure (with proposed changes noted as follows) in Collin, Dallas, and Rockwall counties, primarily to establish identical harvest regulations in the contiguous counties to reduce potential hunter confusion and differential enforcement issues.

         Under current regulations in Grayson County, the take of antlerless deer is by permit only. The department has determined that because harvest in Grayson County is restricted to archery equipment only, the implementation of full-season, either-sex hunting will not result in depletion or waste of the resource because of the comparatively low hunter success rate of archery equipment compared to firearms. The proposed amendment would implement full-season, either-sex hunting in Grayson County.

         Under current regulations there is no open deer season in Galveston County. The season has been closed in Galveston County for many years. The department has determined that much like Collin, Dallas, and Rockwall counties, Galveston County contains fragmented native habitat that supports small deer populations. Currently, all surrounding counties including Harris County have an open general season for deer. These counties have characteristics similar to Galveston in that Fort Bend, Harris, and Brazoria have isolated pockets of suitable deer habitat and small but huntable deer populations. The department has determined that additional hunting opportunity can be provided under the regulatory structure currently in effect in adjoining counties. The department has determined that there is no biological reason to prohibit hunting and the regulation should provide a tool to help manage deer populations. The hunting opportunity would consist of an archery-only season, a general season, and a special late muzzleloader season, with an aggregate annual bag limit of four deer ( no more than two bucks and two antlerless deer), with antlerless harvest by permit only after Thanksgiving.

         The proposed amendment to §65.60, concerning Pheasant: Open Seasons, Bag, and Possession Limits, would close the season for pheasant in Chambers, Jefferson, and Liberty counties. In 1976 the department stocked pheasant in seven counties along the upper Texas coast in an effort to create hunting opportunity. By 2002, surveys indicated no pheasant populations in four of those counties, and the seasons in those counties were closed. Surveys now indicate that there are no pheasants remaining in Chambers, Jefferson, or Liberty counties, either. Therefore, the department proposes to close the season in those counties because there are no birds left to hunt.

2. Fiscal Note.

         Mr. Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the dispensation of the agency’s statutory duty to protect and conserve the wildlife resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that the proposed rules will not directly affect small businesses or micro-businesses. The proposed amendments would not directly regulate any business and would not impose recordkeeping or reporting requirements; impose taxes or fees; affect sales, profits, or market competition; or require the purchase or modification of equipment or services by small businesses or microbusinesses. Therefore, the department therefore has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006. There will be no fiscal implications for persons required to comply with the rules as proposed.

         (C) 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.

         (D) The department has determined that Government Code, §2001.0225(Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted by phone or e-mail to Robert Macdonald (512) 389-4775; e-mail: robert.macdonald@tpwd.state.tx.us, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744. Comments also may be submitted via the department’s website at http://www.tpwd.state.tx.us/business/feedback/public_comment/.

5. Statutory Authority.

         The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 42, which allows the department to issue tags for animals during each year or season and to prescribe the form and issuance of licenses and tags; and 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 proposed amendments affect Parks and Wildlife Code, Chapters 42 and 61.

         §65.7. Harvest Log.

                 (a) (No change.)

                 (b) The provisions of this subsection apply to any person in possession of a license lawfully purchased by any means other than through an automated point-of-sale system.

                         (1) A person who takes a white-tailed deer, mule deer, Rio Grande turkey, or Eastern turkey[, red drum in excess of the maximum length limit, or tarpon] shall complete, in ink, the harvest log on the back of the hunting or fishing license, as applicable, immediately upon kill[, or, in the case of fish, upon retention].

                          (2) (No change.)

         §65.8. Alternative Licensing System.

                 (a) The tagging requirements of Parks and Wildlife Code, §§42.018, 42.0185, 42.020, and 46.0086 do not apply to any person in lawful possession of a license that was sold by the department without tags for white-tailed deer, mule deer, or turkey[, red drum, or tarpon].

                 (b) The requirements of this subchapter that require the attachment of license tags to wildlife resources do not apply to any person in lawful possession of a license that was sold by the department without tags for white-tailed deer, mule deer, or turkey[, red drum, or tarpon]. A properly executed wildlife resource document must accompany any white-tailed deer, mule deer, or turkey [, red drum in excess of maximum size limits, or tarpon] until the provisions of this title and Parks and Wildlife Code governing the possession of the particular wildlife resource cease to apply.

                 (c) (No change.)

         §65.11. Lawful Means. It is unlawful to hunt any of the wildlife resources of this state except by the means authorized by this section and as provided in §65.19 of this title (relating to Hunting Deer with Dogs).

                 (1) Firearms.

                         (A)  It is lawful to hunt alligators, game animals, and game birds with any legal firearm, including muzzleloading firearms, and including a firearm equipped with a silencer [weapons], except as specifically restricted in this section.

                          (B)  Nothing in this paragraph shall be construed to relieve any person of compliance with any other federal, state, or local laws governing the possession or use of firearm silencers.

                         (C)[(B)] Special muzzleloader –only deer seasons are restricted to muzzleloading firearms only.

                         (D)[(C)]It is unlawful to use rimfire ammunition to hunt alligator, deer, antelope, or desert bighorn sheep.

                         (E)[(D)]It is unlawful to hunt alligators, game animals, or game birds with a fully automatic firearm [or any firearm equipped with a silencer or sound-suppressing device].

                         (F)[(E)] In Angelina, Brazoria, Calhoun, Chambers, Galveston, Hardin, Jackson, Jasper, Jefferson, Liberty, Matagorda, Nacogdoches, Newton, Orange, Polk, Refugio, Sabine, San Augustine, San Jacinto, Trinity, Tyler and Victoria counties, alligators may not be hunted by means of firearms. In all other counties, alligators may by hunted by means of firearms on private property, including private waters, but may not be hunted by means of firearms from, on, in, across, or over public water.

                         (G)[(F)] Alligators lawfully caught on a taking device may be dispatched by means of firearms in all counties.

                 (2) (No change.)

                 (3) Crossbow — Special Provisions.

                         (A) In Collin, Dallas, Grayson, and Rockwall counties[County]:

                                  (i) no person may use a crossbow to hunt deer during the archery-only season [(October 3 — November 6)] unless the person has an upper-limb disability and has in immediate possession a physician’s statement that certifies the extent of the disability; and

                                  (ii) any person may hunt deer by means of crossbow during the general open season [(November 7 — January 3)] and the requirements of clause (i) of this subparagraph do not apply.

                         (B) (No change.)

                 (4) – (7) (No change.)

         §65.25. Wildlife Management Plan (WMP).

                 (a) (No change.)

                 [(b) Lesser Prairie Chicken. No person may hunt a lesser prairie chicken in this state except on a property for which the department has approved a WMP as set forth under this subsection that contains a recommended harvest for lesser prairie chicken.]

                         [(1) The WMP required by this subsection shall include:

                                  [(A) a lesser prairie chicken population estimate for the current year(April breeding-ground counts);]

                                  [(B) accurate harvest data from the property for the initial hunting season and each season thereafter that the landowner seeks to hunt lesser prairie chicken on the property;]

                                  [(C) a biological evaluation of the quality of existing prairie chicken habitat and the potential for enhancing existing habitat or creating additional habitat;]

                                  [(D) at least three department-recommended habitat management practices designed to increase, enhance, or connect lesser prairie chicken habitat; and]

                                  [(E) a recommended harvest quota not to exceed 10 percent of the estimated lesser prairie chicken population on the property.]

                         [(2) The landowner agrees, by signing the WMP, to perform data collection for the purposes of meeting the requirements of paragraph(1) of this subsection.]

                         [(3) A WMP under this subsection is not valid unless it has been signed by a department employee authorized to approve management plans. A WMP under this subsection is valid for one year following such signature. The department may refuse to approve a WMP if the landowner has not complied with the provisions of this subsection.]

                         [(4) The department may authorize a recommended harvest in the absence of population or harvest data only for the year 2005; thereafter, a property must meet the requirements of paragraph(1) of this subsection.]

                         [(5) The bag and possession limits for the harvest of lesser prairie chicken shall be as provided in §65.56 of this title(relating to Lesser Prairie Chicken: Open Seasons, Bag, and Possession Limits).]

                         [(6) No person may possess a harvested lesser prairie chicken anywhere other than the property on which the lesser prairie chicken was harvested unless that person also possesses a completed, department-supplied affidavit signed by the landowner of the property where the person harvested the lesser prairie chicken.]

                         [(7) Each lesser prairie chicken harvested on a property for which the department has issued a quota under this subsection shall be recorded in a harvest log. The harvest log shall contain the name of each person who killed a lesser prairie chicken, the date, and the number of lesser prairie chicken the person killed. The harvest log shall be maintained on the property, shall be kept current, and shall be made available for inspection at the request of a department employee acting within the scope of official duties.]

                 (b)[(c)] Javelina.

                         (1) – (6) (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

         The amendments are proposed 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 ay be hunted, taken, or possessed.

         The proposed amendments affect Parks and Wildlife Code, Chapter 61.

         §65.42. Deer.

                 (a) (No change.)

                 (b) White-tailed deer. The open seasons, annual bag limits, and special provisions for white-tailed deer shall be as follows. If Managed Lands Deer Permits(MLDPs) have been issued for a tract of land in any county, they must be attached to all deer harvested on the tract of land, regardless of season. An MLDP buck permit may not be used to harvest or tag an antlerless deer. An MLDP antlerless permit may not be used to tag a buck deer.

                         (1) – (7) (No change.)

                         (8) In Angelina, Brazoria, Chambers, Cherokee, Fort Bend, Galveston, Goliad(south of U.S. Highway 59), Hardin, Harris, Houston, Jackson(south if U.S. Highway 59), Jasper, Jefferson, Liberty, Matagorda, Montgomery, Newton, Orange, Polk, San Jacinto, Trinity, Tyler, Victoria(south of U.S. Highway 59), Walker, and Wharton(south of U.S. Highway 59) counties, there is a general open season.

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

                                  (B) Bag limit: Four deer, no more than two bucks and no more than two antlerless.

                                  (C) Special provisions.

                                          (i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck having:

                                                   (I) at least one unbranched antler; or

                                                   (II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.

                                          (ii) Antlerless deer. If permits have been issued for the harvest of antlerless deer, they must be attached to all antlerless deer harvested on the tract of land.

                                                   (I) On USFS, Corps of Engineers, and river authority lands in the counties listed in this paragraph, the take of antlerless deer shall be by permit only.

                                                   (II) On all other tracts of land in the counties listed in this paragraph, antlerless deer may be taken without permits from opening day through the Sunday immediately following Thanksgiving Day. From the Monday immediately following Thanksgiving Day until the end of the season, antlerless deer may be taken by antlerless MLD permit or LAMPS permit only.

                                                   (III) On tracts of land for which LAMPS permits have been issued, no LAMPS permit is required for the harvest of antlerless deer during the archery-only or muzzleloader-only open season.

                         (9) – (10) (No change.)

                         (11) In Collin, Dallas, Grayson, and Rockwall counties [County] there is a general open season.

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

                                  (B) Bag limit: four deer, no more than two antlerless and no more than two bucks.

                                  (C) Special provisions. Lawful means are restricted to lawful archery equipment and crossbows only, including MLDP properties.

                                          (i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck deer having:

                                                   (I) at least one unbranched antler; or

                                                   (II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.

                                          (ii) Antlerless deer. No permit is required to hunt antlerless deer unless MLD antlerless permits have been issued for the tract of land[Antlerless deer may be taken by MLD antlerless permits only. If permits have been issued for the harvest of antlerless deer, they must be attached to all antlerless deer harvested on the tract of land].

                         (12) – (16) (No change.)

                         (17) Muzzleloader-only open seasons, and bag and possession limits shall be as follows. In Angelina, Austin, Bastrop, Bowie, Brazoria, Brewster, Caldwell, Camp, Cass Chambers, Cherokee, Colorado, Culberson, DeWitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Gregg, Guadalupe, Hardin, Harris, Harrison, Houston, Jackson, Jasper, Jeff Davis, Jefferson, Karnes, Lavaca, Lee, Liberty, Marion, Matagorda, Montgomery, Morris, Nacogdoches, Newton, Orange, Panola, Polk, Presidio, Reeves, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, Upshur, Victoria, Walker, Waller, Washington, Wharton, and Wilson counties, there is an open season during which deer may be taken only with a muzzleloader.

                                  (A) Open Season: 14 consecutive days starting the first Monday following the first Sunday in January.

                                  (B) Bag limit: as specified in this section for the general season in the county in which take occurs.

                                  (C) Special provisions:

                                          (i) Buck deer. In any given county, all restrictions established in this subsection for the take of buck deer during the general season remain in effect.

                                          (ii) Antlerless deer. No permit is required for the take of antlerless deer, except:

                                                   (I) on properties for which antlerless MLDPs have been issued; and

                                                   (II) in the counties that are also listed in paragraph(12) of this section.

                         (18) (No change.)

                 (c) (No change.)

         §65.60. Pheasant: Open Seasons, Bag, and Possession Limits.

                 (a) In Armstrong, Bailey, Briscoe, Carson, Castro, Childress, Cochran, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Donley, Floyd, Gray, Hale, Hall, Hansford, Hartley, Hemphill, Hockley, Hutchinson, Lamb, Lipscomb, Lubbock, Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Randall, Roberts, Sherman, Swisher, Wheeler, and Wilbarger counties, there is an open season for pheasants.

                         (1) Open season: First Saturday of December for 30 consecutive days.

                         (2) Daily Bag limit: Three cock pheasants.

                         (3) Possession limit: Six cock pheasants.

                 [(b) In Chambers, Jefferson, and Liberty, counties, there is an open season for pheasants.]

                         [(1) Open season: Saturday nearest November 1 through the last Sunday in February.]

                         [(2) Daily bag limit: Three cock pheasants.]

                         [(3) Possession limit: Six cock pheasants.]

                 (b)[(c)] In all other counties, there is no open season on pheasants.

                 (c)[(d)] It is unlawful to hunt pheasant with the aid of a cable, chain, rope, or other device connected to or between a moving object or objects.

         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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