TITLE 31.NATURAL RESOURCES AND CONSERVATION

Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

Subchapter A. STATEWIDE OYSTER FISHERY PROCLAMATION

The Texas Parks and Wildlife Commission adopts amendments to §58.22, concerning Commercial Fishing, and §58.23, concerning Non-Commercial (Recreational) Fishing, without changes to the proposed text as published in the April 21, 2006, issue of the Texas Register (31 TexReg 3351).

Responsibility for adopting rules covering the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas is set forth in Parks and Wildlife Code, Chapter 76.

Following extensive discussions with the department's Oyster Advisory Committee, the department published a proposal in the July 22, 2005, issue of the Texas Register (30 TexReg 4195) to reduce the daily limit of oysters taken for commercial purposes and to implement a new standard for the quantitative measurement of oyster harvests. The amendments were adopted and the department published a notice of adoption in the October 21, 2005, issue of the Texas Register (30 TexReg 6935). The purpose of the rulemaking was to promote efficiency in the utilization of oyster resources by providing a more stable price structure for oysters over the duration of the open season. The rulemaking was expected to lengthen the productive part (in terms of sacks per vessel landed) of the season. If landings are more stable, a more stable average price throughout the season can be expected, which should create overall economic benefits for the industry. An argument could be made that catching more sacks per trip will increase efficiency and create more catch per unit of effort, leading to greater net profits. If price did not decline during such early harvest peaks, that might in fact be the case; however, dealers indicated that prices decline due to the high harvest levels at the beginning of the season.

The 2004 oyster season was used as an example of a volatile market. Landings declined during the season from an initial average of 7,973 sacks per day (November 2003) to an average 2,868 sacks per day by the last month of the season (April 2004). The corresponding average price per sack in November 2003 was $14.11 per sack and the average of April 2004 was $15.28 per sack. This indicates the price at the beginning of the season was 7% lower than the price at the end of the season, without accounting for any quality differences that may have occurred between the fall and spring seasons. If a fisherman who could catch 150 sacks per day at the beginning the season maintained this proportion of the catch throughout the season, only 53 sacks per day would be caught in the last month. Gross receipts would begin the season at $2,115 per day and drop to $824 per day by the end of the season.

In contrast, the 2003 oyster season was used as an example of a more stable market. Landings declined slightly during the season from an initial average of 5,753 sacks per day (November 2002) to an average 3,595 sacks per day by the last month of the season (April 2003). The corresponding average price per sack in November 2002 was $14.42 per sack and the average of April 2003 was $14.47 per sack. If a fisherman who could catch 150 sacks of oysters per day at the beginning the season maintained this proportion of the catch throughout the season, landings (total sacks) would be approximately 18% higher than total landings during the 2004 season example above. Gross receipts would begin the season at $2,163 per day and end the season at $1,356 per day, and total gross receipts under this scenario would be 19.7% higher than total gross receipts under the 2004 example above.

The rationale behind the rulemaking was that to receive the benefits of a stable market in a majority of future seasons, the daily harvest had to be reduced to a level that would allow the total available oysters in Texas bays to be reduced at a slower rate through the season than can be routinely obtained with the higher bag limit. Intuitively, this would suggest a significant reduction in gross receipts due to the significant reduction in bag. However, the behavior of the market itself provides benefits to the fisherman. If a fisherman during the 2003 season (i.e., used as the stable example above) could catch 90 sacks of oysters per day at the beginning the season and maintain this average catch rate throughout the season, landings (total sacks) would be roughly equivalent to the total landings during the 2004 season example above. However, gross receipts would begin the season at $1,298 per day and end the season at $1,301 per day, and total gross receipts under this scenario would be 1.6% higher than total earnings under the 2004 example above. Fishermen will be impacted by this proposal; however, it is expected that the benefits to fishermen will off set the negative impacts of a reduced bag on early season efficiency.

In itself, reducing the amount of oysters taken by an individual boat would not have accomplished this or any other management goal had not the 79th Legislature limited the number of boats allowed to fish for oysters. Therefore, the proposed rulemaking was consistent with the industry's legislative initiative to limit the number of commercial oyster boat licenses that may be issued for use in Texas waters.

The adopted amendment to §58.22 would establish a specific volume of oysters that could be legally possessed or taken in one day for commercial purposes.

The adopted amendment to §58.23 would establish a specific volume of oysters that could be legally possessed or taken in one day for non-commercial (recreational) purposes. The adopted amendments are necessary to clarify the daily bag limit and unit of measurement for oysters. The adopted amendments are necessary because the department has determined that the current rule language does not clearly convey the intent of the Parks and Wildlife Commission that the 90-sack limit function as a daily bag limit and not solely as a possession limit. Similarly, the recreational bag limit also was intended to be a daily bag limit as well as a possession limit. The adopted amendments are intended to clarify that the daily bag limit for commercial oystermen is 90 sacks per day of legal sized oysters and the possession limit for a commercial oysterman while on the water is also 90 sacks. In addition to the commercial limits, the proposed amendment to §58.23, concerning Non-commercial (Recreational) Fishing, offers a similar clarification for recreational oyster fishermen, stipulating a daily bag limit of two sacks of legal sized oysters, and replaces the 'bushel' with the 'sack' as the standard unit of measure.

The adopted amendment to §58.22 will function by specifying the maximum volume of oysters that may be legally possessed or taken in one day for commercial purposes.

The adopted amendment to §58.23 will function by specifying the maximum volume of oysters that may be legally possessed or taken in one day for non-commercial (recreational) purposes, and by establishing the sack as the standard unit of measure for oysters.

The department received no comments concerning adoption of the proposed amendments.

The amendments are adopted under Parks and Wildlife Code, §61.052, which requires the commission to regulate the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in or from the places covered by the chapter, and §76.301, which authorizes the commission to regulate the taking, possession, purchase, and sale of oysters.

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 12, 2006.

TRD-200603156

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Effective date: July 2, 2006

Proposal publication date: April 21, 2006

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

Chapter 65. WILDLIFE

Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

2. OPEN SEASONS AND BAG LIMITS--HUNTING PROVISIONS

31 TAC §65.60

The Texas Parks and Wildlife Commission adopts an amendment to §65.60, concerning Pheasant: Open Seasons, Bag, and Possession Limits, with changes to the text as published in the April 21, 2006, issue of the Texas Register (31 TexReg 3353).

The change corrects a typographical error indicating that the possession limit is six pheasants, rather than six cock pheasants. The change is nonsubstantive, given that the extensive references to cock-only bag limits in the preamble make it clear that the intent of the rulemaking was to have the bag composition of the possession limit mirror that of the daily bag limit.

The adopted amendment increases the daily bag limit and possession limits for pheasant in Texas Panhandle counties (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). From 1995 to 2002, the pheasant season in the Panhandle began on the second Saturday in December and ran for 16 consecutive days. In 2002, the department increased the length of the pheasant season in the Texas Panhandle from 16 to 30 days, and began the season one week earlier. The ring-necked pheasant is a polygamous species (the male mates with multiple females). For this reason, a hunting season timed to take place after the majority of breeding has taken place and restricted to males will not affect the overall population, provided the bag limit is not set so high that recuperative potential (the ability of the population to sustain itself at a given population level) is affected. Accordingly, as a precautionary measure, when the department lengthened the season and opened it a week earlier, the bag limit was reduced from three cock pheasant to two.

An analysis of harvest data over the last 11 years (eight years at a three-bird bag limit and three years at the two-bird bag limit) indicates that the long-term average of total harvest has remained essentially unchanged. From 1995 to 2003 (three-bird limit, 16-day season), the average total harvest was approximately 26,000 cocks per year. From 2003 to 2005 (two-bird bag limit, 30-day season), the total harvest averaged 24,000 cocks per year. Hunter success during the period from 1995 to 2003 was approximately 1.25 birds per day, while from 2003 to 2005, it was approximately one bird per day. The estimated number of hunters from 1995 to 2003 averaged 25,900; from 2003 to 2005 it was approximately 24,170. If harvest pressure remains stable at the long-term average (i.e. at between 1.0 and 1.25 birds per day), increasing the bag limit by one cock should result in a total increase of between 1,730 and 2,160 birds per year, which would result in a total harvest less than the average total annual harvest under the three-bird/16-day season structure that was in effect from 1995 to 2003. The department therefore believes that increasing the bag limit by one cock will not result in depletion of the resource.

The possession limit for pheasant is twice the daily bag limit; therefore, in addition to increasing the daily bag limit on male pheasants, the amendment also increases the possession limit to six birds.

The adopted amendment to §65.60 will function by increasing the daily bag and possession limits for pheasant in 37 counties in the Texas Panhandle.

The department received two comments concerning adoption of the proposed amendment. Both comments were in support of adoption.

The Texas Wildlife Association commented in support of adoption of the proposed amendment.

The amendment is adopted under 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.

§65.60.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.

(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 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 12, 2006.

TRD-200603155

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Effective date: July 2, 2006

Proposal publication date: April 21, 2006

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

Subchapter H. PUBLIC LANDS PROCLAMATION

31 TAC §§65.190, 65.192, 65.204

The Texas Parks and Wildlife Commission adopts amendments to §65.190 and §65.192, and new §65.204, concerning the Public Lands Proclamation. Section 65.190 is adopted with changes to the proposed text as published in the April 21, 2006, issue of the Texas Register (31 TexReg 3354). Sections 65.192 and 65.204 are adopted without changes and will not be republished.

The adopted change to §65.190 alters the unit number assigned to Matagorda Island Wildlife Management Area. The unit number of 1134 was assigned to the area when it was both a state park and a wildlife management area. Because the area is no longer a state park, it must be renumbered for purposes of internal reference. The new unit number is Unit 722.

The adopted amendment to §65.190, concerning Application, removes the Aquilla Wildlife Management Area from the applicability of the subchapter. The Aquilla area has been removed from the public hunting program by the U.S. Army Corps of Engineers, which owns the area. The adopted amendment also acknowledges the change in status of Matagorda Island State Park/Wildlife Management Area, which is no longer a unit of the state park system and is being operated solely as a wildlife management area. The adopted amendment is necessary to properly indicate the functional title of that property.

The adopted amendment to §65.192, concerning Powers of the Executive Director, eliminates former subsections (g) - (i). Former subsection (g) authorized the executive director to permit recreational activities on public hunting lands, compatible with sound resource management practices and public health and safety. The subsection is being eliminated in order to move its provisions to new §65.204, which comprehensively addresses recreational uses on wildlife management areas, making subsection (g) unnecessary.

Former subsection (h) authorized the executive director to waive application and permit fees for events having participation restricted to youth or disabled persons, or for activities conducted for purposes of research, education, or charity. The subsection has been eliminated because there are no application or permit fees for events or activities other than hunting. The only fees currently charged at wildlife management areas are those associated with hunting, which is not regarded as a special event.

Former subsection (i) authorized the executive director to establish regulations for camping on public hunting lands, consistent with the type of public use activity authorized and the environmental protection of the area. Camping is an activity other than hunting or fishing and is thus a recreational use as defined in §65.191(34). The subsection is being eliminated for the same reasons as subsection (g).

Adopted new §65.204, concerning Recreational Activities on Wildlife Management Areas, authorizes specific recreational activities on all wildlife management areas, provided the use does not conflict with the operation or management of an area or with the utilization of an area for the purposes for which it was purchased, leased, or acquired. The adopted new section is necessary to allow the use of wildlife management areas for purposes other than hunting and fishing. Many if not most of the wildlife management areas in Texas were purchased wholly or in part through the Pittman-Robertson (PR) Federal Aid program. Under PR rules, such property can be used for any purpose not inconsistent with the reasons for which the property was approved for purchase.

The adopted amendment to §65.190 will function by removing references to areas that are no longer subject to the subchapter and by reflecting the proper classification terminology of each type of area under the control of the subchapter.

The adopted amendment to §65.192 will function by eliminating unnecessary provisions.

Adopted new §65.204 will function by authorizing specific recreational activities on all wildlife management areas.

The department received 10 comments opposing adoption of the proposed amendment to §65.192 that would remove Aquilla Wildlife Management Area from the public hunting program. Of the 10 commenters, seven articulated a specific reason for opposing adoption: all seven stated that hunting and fishing should not be discontinued on the area. The department agrees with the comments and responds that hunting and fishing will continue at the Aquilla area; however, management will be by the U.S. Army Corps of Engineers, which owns the property. The rule simply removes the property from management by the Texas Parks and Wildlife Department. No changes were made as a result of the comment. The department received three comments supporting adoption of the proposed amendment.

The department received four comments opposing the proposed amendment to eliminate §65.192(g), which authorized the executive director to permit recreational activities on public hunting lands. No commenter stated a specific reason for opposition. No changes were made as a result of the comments. The department received one comment supporting adoption of the proposed amendment.

The department received nine comments opposing adoption of the proposed amendment to delineate the specific recreational activities authorized on wildlife management areas. All nine commenters stated that wildlife management areas should not be used for any purpose other than hunting or fishing. The department disagrees with the comments and responds that the commission policy and direction is to provide the maximum amount of public hunting opportunity possible on wildlife management areas, balanced with what recreational activity can be provided; however, the primary use of wildlife management areas is as research and demonstration areas. Therefore, recreational activities are permitted when they do not interfere with either hunting activities or research and demonstration activities. No changes were made as a result of the comments. The department received three comments supporting adoption of the proposed rule.

One commenter opposed adoption of the proposed rules and stated that hunting should not be allowed at Choke Canyon State Park because there were no more deer left and the park was in bad shape. The commenter also stated that if hunting is allowed, the entire park should not be closed, just the unit where hunting is taking place. Concerning the authorization of recreational activities on wildlife management areas, the commenter stated that the rule language should employ the imperative tense rather than the conditional tense in establishing the department's duties. The department disagrees with the comments and responds that public hunting on any unit of public hunting lands is offered only under when supported by the tenets of sound biological management, and would not be offered in any circumstance where to do so would endanger a healthy wildlife population or degrade habitat. Additionally, the department comments that units are closed when deemed necessary by staff for safety reasons or to provide maximum hunting opportunity during periods of historically low visitation. The department also responds that the grammatical voice used to express the intent of the commission with respect to recreational activities on wildlife management areas is irrelevant. Even if the rule were to require that recreational activities be provided, the activities would still have to take place within the ambit of allowable use under the terms of the agreements under which the areas were purchased or leased. In any event, the purpose of the rule is to articulate the department's commitment to the provision and equitable distribution of what recreational activity is possible on wildlife management areas. No changes were made as a result of the comments.

The Texas Wildlife Association commented in support of adoption of the proposed rules.

The amendments and new section are adopted under Parks and Wildlife Code, Chapter 12, Subchapter A, which provides that a tract of land purchased primarily for a purpose authorized by the code may be used for any authorized function of the department if the commission determines that multiple use is the best utilization of the land's resources, and Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to adopt rules governing recreational activities in wildlife management areas.

§65.190.Application.

(a) This subchapter applies to all activities subject to department regulation on lands designated by the department as public hunting lands, regardless of the presence or absence of boundary markers. Public hunting lands are acquired by lease or license, management agreements, trade, gift, and purchase. Records of such acquisition are on file at the Department's central repository.

(b) On U.S. Forest Service Lands designated as public hunting lands (Alabama Creek, Bannister, Caddo, Lake McClellan Recreation Area, Moore Plantation, and Sam Houston National Forest WMAs) or any portion of Units 902 and 903, persons other than hunters are exempt from the provisions of this subchapter, except for the provisions of §65.199(15) of this title (relating to General Rules of Conduct).

(c) On U.S. Army Corps of Engineer Lands designated as public hunting lands (Cooper, Dam B, Granger, Pat Mayse, Ray Roberts, Somerville, and White Oak Creek WMAs), persons other than hunters and equestrian users are exempt from requirements for an access permit.

(d) On state park lands designated as public hunting lands, access for fishing and recreational use is governed by state park regulations.

(e) Public hunting lands include, but are not limited to, the following:

(1) Alabama Creek WMA (Unit 904);

(2) Alazan Bayou WMA (Unit 747);

(3) Atkinson Island WMA;

(4) Bannister WMA (Unit 903);

(5) Big Lake Bottom WMA (Unit 733);

(6) Black Gap WMA (Unit 701);

(7) Caddo Lake WMA (Unit 730);

(8) Caddo National Grasslands WMA (Unit 901);

(9) Candy Abshier WMA;

(10) Cedar Creek Islands WMA (includes Big Island, Bird Island, and Telfair Island Units);

(11) Chaparral WMA (Unit 700);

(12) Cooper WMA (Unit 731);

(13) D.R. Wintermann WMA;

(14) Dam B WMA--includes Angelina-Neches Scientific Area (Unit 707);

(15) Designated Units of the Las Palomas WMA;

(16) Designated Units of Public Hunting Lands Under Short-Term Lease;

(17) Designated Units of the Playa Lakes WMA;

(18) Designated Units of the State Park System;

(19) Elephant Mountain WMA (Unit 725);

(20) Gene Howe WMA (Unit 755)--includes Pat Murphy Unit (Unit 706);

(21) Granger WMA (Unit 709);

(22) Guadalupe Delta WMA (Unit 729)--includes Mission Lake Unit (720), Guadalupe River Unit (723), Hynes Bay Unit (724), and San Antonio River Unit (760);

(23) Gus Engeling WMA (Unit 754);

(24) James Daughtrey WMA (Unit 713);

(25) J.D. Murphree WMA (Unit 783);

(26) Keechi Creek WMA (Unit 726);

(27) Kerr WMA (Unit 756);

(28) Lake McClellan Recreation Area (Unit 906);

(29) Lower Neches WMA (Unit 728)--includes Old River Unit and Nelda Stark Unit;

(30) Mad Island WMA (Unit 729);

(31) Mason Mountain WMA (Unit 749);

(32) Matador WMA (Unit 702);

(33) Matagorda Island WMA (Unit 722);

(34) M.O. Neasloney WMA;

(35) Moore Plantation WMA (Unit 902);

(36) Nannie Stringfellow WMA (Unit 716);

(37) North Toledo Bend WMA (Unit 615);

(38) Old Sabine Bottom WMA (Unit 732);

(39) Old Tunnel WMA;

(40) Pat Mayse WMA (Unit 705);

(41) Peach Point WMA (Unit 721);

(42) Ray Roberts WMA (Unit 501);

(43) Redhead Pond WMA;

(44) Richland Creek WMA (Unit 703);

(45) Sam Houston National Forest WMA (Unit 905);

(46) Sierra Diablo WMA (Unit 767);

(47) Somerville WMA (Unit 711);

(48) Tawakoni WMA (Unit 708);

(49) Walter Buck WMA (Unit 757);

(50) Welder Flats WMA;

(51) White Oak Creek WMA (Unit 727); and

(52) Other numbered units of public hunting lands.

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 12, 2006.

TRD-200603154

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Effective date: July 2, 2006

Proposal publication date: April 21, 2006

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