31 TAC §65.309, §65.310
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.
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.
Mr. Macdonald also has determined that for each of the first five years
the amendments as proposed are in effect, 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.
There will be no effect on small businesses. There are no additional economic
costs to persons required to comply with the rules as proposed.
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.
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.
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.
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)
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.
(8)
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.
(9)
[
(7)
] Nontoxic shot--Any shot
approved by the director, U.S. Fish and Wildlife Service.
(10)
Normal agricultural operation
-An agricultural practice other than a normal agricultural planting, harvesting,
or post-harvest manipulation, including practices not directly tied to crop
production (i.e., livestock feeding), that is conducted in accordance with
official recommendations of State Extension Specialists of the Cooperative
Extension Service of the U.S. Department of Agriculture.
(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 normal
agricultural operation.
(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 legal authority to adopt.
Filed with the Office of the Secretary of State on June
28, 1999.
TRD-9903849
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 8, 1999
For further information, please call: (512) 389-4775