The Texas Parks and Wildlife Commission adopts amendments to §§65.11, 65.26, 65.28, 65.42, 65.46, and 65.72, concerning the Statewide Hunting and Fishing Proclamation. Sections 65.11, 65.42, and 65.72 are adopted with changes to the proposed rules as published in the March 5, 1999, issue of the Texas Register (24 TexReg 1574). Sections 65.26, 65.28, and 65.46 are adopted without changes and will not be republished.

The change to §65.11, concerning Lawful Means, removes a proposed prohibition on devices built into or attached to a bow that would allow it to be locked at full or partial draw. The change to §65.42, concerning Deer, removes a proposal that would have opened the season for white-tailed deer in Blanco, Gillespie, Llano, and Mason counties on the Saturday closest to November 15; removes proposals that would have restricted the harvest of buck deer in Washington, Fayette, Lavaca, Austin, and Colorado counties; alters a roadway boundary in Victoria County to conform with actions of the Texas Department of Transportation; and establishes a permit requirement for the hunting of antlerless deer in Grayson County. The change to §76.72, concerning Fish, establishes an effective date of May 20, 1999, for bag and possession limits for red snapper; adds three species to the list of lawful baitfish in 17 West Texas counties and clarifies that all other baitfish may not be used or possessed while fishing; and eliminates a proposed zero bag limit on red snapper for the captain and crew of for-hire vessels.

The rules in general are justified under the provisions of Parks and Wildlife Code, Chapter 61, which requires the department to provide open seasons for the hunting of game animals and game birds when its investigations and findings of fact reveal that open seasons may be safely provided, and further, requires the commission to specify the species, quantity, age or size, and sex of wildlife resources that may be taken or possessed; the means and methods by which wildlife resources may be taken, and the geographical locations where wildlife resources may be taken.

In particular, §65.11 is justified because the department has expanded the former late antlerless-only season to include spike bucks as well as antlerless deer. Section 65.26 is justified because the creation of a bonus white-tailed deer tag for use on managed lands necessitates the inclusion of language to conform the section's application to holders of a bonus tag, and because the extended season available to MLD properties in Hill Country counties is a general season and therefore the stamp requirement for muzzleloading weapons does not apply. Section 65.28 is justified because the creation of a bonus white-tailed deer tag for use on managed lands necessitates the inclusion of language to conform the section's application to holders of a bonus tag. Section 65.42 is justified because: biological and demographic data indicate that antlerless deer populations in Archer, Baylor, Clay, Montague, and Wise counties may be hunted for the entire season without risk of negative impacts to the health of the population; biological data indicates that an archery-only general season in Grayson County would have a negligible impact on deer populations in that county; bonus white-tailed deer tags may be safely provided on properties for which a finite harvest quota has been determined under a department-approved management plan; controlled deer harvest on certain wildlife management areas jointly managed by the department and the U.S. Forest Service can be provided just as sensibly by U.S. Forest Service authorization as by department permit; and the redesignation of highways serving as regulatory boundaries necessitates conforming regulatory language to preserve the biological integrity of hunting regulations. Section 65.46 is justified because biological and demographic data indicate that additional conservative hunting opportunity can be safely provided. Section 65.72 is justified because: restriction of certain species of baitfish in West Texas offers protection to endangered species of fishes; biological data indicate that the harvest of smaller walleye is justified to attain a better population structure; existing regulations for largemouth bass on Lakes Brownwood, Champion Creek, Coleman, Striker, Tyler State Park, and Weatherford, Fort Phantom Hill and E. V. Spence were experimental and the department has decided to return to the standard statewide regulations in light of the negligible effectiveness of the experimental regulations; biological data indicate that smaller bass can be harvested on Lake Murvaul without negatively impacting the health of bass populations; the temporary retention of fish for weighing purposes is not likely to result in statistically significant fish mortality; allowing the use of hand-held devices underwater is inconsistent with the equitable distribution of fishing opportunity; and conforming state regulations to federal regulations in federal waters reduces angler confusion and enhances enforcement activities.

The amendment to §65.11, concerning Lawful Means, modifies the provisions of paragraph (1)(B) to reflect the fact that muzzleloader-only seasons now apply to spike-bucks as well as antlerless deer. The amendment to §65.26, concerning Managed Lands Deer Permits, adds provisions for the use of bonus tags in conjunction with MLD permits and specifies that the provisions of muzzleloader-only seasons do not apply on properties qualifying for an extended season and enhanced bag limit. The amendment to §65.28, concerning Landowner Assisted Management Permit System, adds provisions for the use of bonus tags in conjunction with LAMPS permits. The amendment to §65.42, concerning Deer: increases the statewide bag limit for white-tailed deer for persons who purchase a bonus tag; specifies the conditions for use of the bonus tag; eliminates 'doe days' in Archer, Baylor, Clay, Montague, and Wise counties; expands the number of 'doe days' in the counties listed in paragraph (4)(C); and creates a restricted general season in Grayson County. The amendment to §65.46, concerning Squirrel, creates a youth-only open season in certain counties. The amendment to §65.72, concerning Fish: establishes a prohibition on the underwater use of hand-operated devices to take fish; modifies the statewide walleye regulations to allow two walleye of less than 16 inches in the daily bag limit; reduces the minimum length for largemouth bass from 16 to 14 inches on Lakes Brownwood, Champion Creek, and Coleman; removes the 14-18 inch length limit on Lakes Striker, Tyler State Park, and Weatherford, which places these lakes under the statewide 14-inch minimum length and 5-fish daily bag limit; imposes a 12-inch minimum length limit for blue catfish and a 25-fish daily bag limit for blue and channel catfish on Fort Phantom Hill and E.V. Spence Reservoirs; creates a 14-21 inch slot limit for largemouth bass on Lake Murvaul while allowing one fish per day over 21 inches to be retained; changes the minimum allowable length limit for temporarily weighing and retaining largemouth bass on Purtis Creek State Park Lake and all water bodies within the boundaries of Purtis Creek State Park, Gibbons Creek Reservoir and all waters within Texas Municipal Power Agency property, and Lake Raven to 21 inches; restricts baitfish use in Brewster, Crane, Crockett, Culberson, Ector, El Paso, Jeff Davis, Hudspeth, Loving, Pecos, Presidio, Reeves, Terrell, Upton, Val Verde, Ward, and Winkler counties to common carp, fathead minnows, gizzard and threadfin shad, sunfish (Lepomis), goldfish, Mexican tetra, Rio Grande cichlid, silversides, and golden shiners; and conforms regulations for king mackerel and red snapper with proposed regulations for federal waters.

The department received 215 comments opposing the proposed opening date of deer season in Blanco, Llano, Gillespie, and Mason counties on the basis that it would reduce hunter opportunity, would not result in higher quality deer, and would negatively impact local economies. The department agrees that hunter opportunity would be reduced and that there would be no appreciable biological benefit for the resource, and has made changes accordingly. The department received 227 comments in support of the proposed amendment.

The department received 13 comments opposed to the proposal to restrict the harvest of buck deer in Austin, Colorado, Lavaca, and Fayette counties. The commenters stated that fragmented land ownership, high hunting pressure, and poor habitat could not be offset by the proposal and that the regulation would make 90% of the bucks in those counties unavailable for lawful hunting. The department agrees with the commenters and further adds that Parks and Wildlife Code requires the department to prevent conditions of waste or depletion, but does not authorize the promulgation of regulations merely on the basis of aesthetics. The department has made changes accordingly. The department received 399 comments in favor of the proposal.

The department received 5 comments against the proposal to restrict the harvest of buck deer in Washington County. The commenters stated that the proposed regulation would make 90% of the buck deer in the county unavailable for lawful hunting. The department agrees with the commenters and has made changes accordingly, and further adds that Parks and Wildlife Code requires the department to prevent conditions of waste or depletion, but does not authorize the promulgation of regulations merely on the basis of aesthetics. The department received 175 comments in favor of the proposal.

The department received two comments opposed to the opening of a general season for deer in Grayson County because it would negatively affect migratory bird hunting. The department disagrees with the comments and responds that deer season does not unduly conflict with migratory game bird seasons in other counties around Grayson County, or anywhere else in the state, for that matter. No changes were made as a result of the comments. The department received 322 comments in favor of the proposal.

The department received 25 comments opposing a proposal that would have prohibited, during the archery-only season, any device built into or attached to a bow that would enable the bow to be locked at full or partial draw. The commenters stated that such a device enabled youth, seniors, and other hunters who would ordinarily be unable to draw a traditional bow to participate in archery hunting, and that the device did not deprive other hunters of recreational opportunity or affect the quality of hunting enjoyed by hunters who preferred not to use the device. The department agrees with the commenters and has made changes accordingly. The department received four comments in favor of the proposal.

The department received 42 comments opposing the proposal to create a bonus white-tailed deer tag. Commenters were opposed primarily on the grounds that such a tag would benefit only large landowners and affluent hunters; that the fee wasn't high enough, and because the present bag limits are sufficient. The department disagrees with the comments and responds that the bonus tag is a management tool and can only be used in conjunction with department-approved management plans that specify a finite harvest quota, that the fee was set to make the tag affordable to the greatest number of people, and that the anticipated demand for the tags will be less than half of one percent of the state's licensed hunters. No changes were made as a result of the comments. The department received 9 comments in favor of the proposal.

The department received six comments opposing the proposal to eliminate 'doe days' in several North Texas counties. The commenters stated that the doe population was not large enough to sustain either-sex hunting on a full-season basis. The department disagrees with the comments and responds that population surveys indicate that the antlerless deer population in the affected counties is sufficient to justify the creation of additional opportunity. No changes were made as a result of the comments. Nine comments in favor of the proposal were received.

The department received 116 comments opposing the proposal creating a slot limit for largemouth bass on Lake Murvaul and allowing one fish per day of over 21 inches to be retained, largely on the basis that the rule would negatively impact tournament fishing. The department disagrees with the comments and responds that the proposal will improve the quality of angling for bass and alleviate some potential structural problems in the bass population. No changes were made as a result of the comments. The department received nine comments in favor of the proposal.

The department received one comment in favor of the proposal to change the length limit on blue catfish back to the statewide limit of 12 inches on Fort Phantom Hill Reservoir.

The department received one comment opposing the proposal to change the minimum length limit for temporary weighing on Purtis Creek State Park Lake. The department disagrees with the comment and responds that any additional mortality of bass will be minimal and will be out-weighed by additional opportunity to weigh big bass.

The department received two comments opposing the proposal to decrease the daily bag limit on red snapper. The department disagrees with the comments and responds that the current minimum size limit and proposed reduced daily bag and possession limits correspond to a regulation implemented by the Gulf of Mexico Fishery Management Council in federal waters where most of the red snapper fishery occurs. This would insure consistency in regulation enforcement and reduce confusion for anglers. In addition, the biomass yield per recruit and the spawning success of the over fished red snapper stocks would be improved. No changes were made as a result of the comments.

Subchapter A. Statewide Hunting and Fishing Proclamation

Subchapter D. Memorandum of Understanding

The new section is adopted under Transportation Code, §201.607, which requires each state agency that is responsible for the protection of the natural environment or for the preservation of historical or archeological resources to examine and revise their memorandum of understanding with the Texas Department of Transportation.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 9, 1999.

TRD-9903377

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 29, 1999

Proposal publication date: March 5, 1999

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