Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

The Texas Parks and Wildlife adopts amendments to §§65.3, 65.10, 65.11, 65.26, 65.27, 65.42, 65.44, 65.62, 65.64, 65.72, 65.78, the repeal of §§65.29 - 65.32, and new §§65.29 - 65.33, concerning the Statewide Hunting and Fishing Proclamation. Sections 65.3, 65.10, 65.26, 65.29, 65.31, 65.42, 65.62, 65.64 are adopted with changes to the proposed text as published in the February 23, 2001, issue of the Texas Register (26 TexReg 1664). The repeal of §§65.29 - 65.32, the amendments to §§65.11, 65.27, 65.44, 65.72, 65.78, and new §§65.30, 65.32, and 65.33 are adopted without changes to the proposed text and will not be republished.

The change to §65.3, concerning Definitions, clarifies the definition for 'final processing' and redesignates it to preserve alphabetical order of the section. The change to §65.10, concerning Possession of Wildlife Resources, consists of nonsubstantive grammatical alterations intended to clarify the proof-of-sex provisions for turkey and pheasant. The change to §65.26, concerning Managed Lands Deer Permits, alters cross-references to comport with changes to section designations elsewhere in the rulemaking, adds language to clearly identify the period of validity for Level 1 and Level 2 MLD permits, eliminates a proposed license log, implements provisions to allow partial permit issuance pending the completion of survey activities, and further provides that untagged deer on MLD properties to be transported to a central tagging location on the property. The change to 65.29, concerning Bonus Tags, allows bonus tags to be used during special public hunts authorized by the department. The change §65.31, concerning Desert Bighorn Sheep Permits, replaces the term 'lawful representative' with 'authorized employee' to be consistent with regulatory language in other sections. The change to §65.42, concerning Deer, combines subsections (a)(3) and (4) to avoid repetition and renumbers paragraphs and cross-references accordingly, adds clarifying language to subsection (b)(4) and (5) to eliminate confusion about aggregate bag limits in 'one-buck' counties, terminates the muzzleloader-only season in Howard and Irion counties, alters language in paragraphs (5)(D) and (E) and (6)(C) to remove inaccurate references to river authorities and to specify that antlerless deer may not be taken without certain permits on certain units of public lands, and reduces the scope of the proposed additions to youth-only seasons, creating only one additional weekend of youth-only hunting in January while allowing the take of buck deer on Level II MLD properties during that season. The change to §65.62, concerning Quail, implements an early opening day only in those years that quail season would otherwise open concurrently with white-tailed deer season, and eliminates the youth-only season, which conflicts with the early opener. The change to §65.64, concerning Turkey, eliminates subsection (b)(1)(F) and relocates those provisions in subsection (b)(1)(C) to eliminate redundancy, and reduces the scope of the proposed additions to youth-only seasons, instituting one additional weekend of youth-only hunting in January.

The repeals are necessary to reconstitute former §65.42(b)(11) as new §65.29, which causes former §§65.29 - 65.32 to be redesignated without change as new §§65.30 - 65.33. The amendment to 65.3, concerning Definitions, adds a new definition for 'final processing.' The amendment is necessary for the department to ensure that provisions governing daily bag and possession limits can be enforced. The amendment to §65.10, concerning Possession of Wildlife Resources, liberalizes the proof-of-sex requirement for turkey, clarifies the requirements for pheasant, and nonsubstantively restructures the section's contents for clarity's sake. The amendment is necessary to create an unambiguous standard for the identification of harvested turkey. The amendment to §65.11, concerning Lawful Means, which clarifies an ambiguity concerning the use of lawful archery equipment, is necessary to make it clear that muzzleloader-only open seasons are restricted to muzzleloading firearms only. The amendment to §65.26, concerning Managed Lands Deer Permits, authorizes a partial issuance of MLD permits in cases where the required survey data is still in the process of being collected, and allows hunters to transport harvested deer to a central location on the property where the deer was killed in order to affix the appropriate MLD tag to the animal. The amendment is necessary to accommodate landowners on whose property the vegetative cover prevents the conclusion of accurate surveys prior to the beginning of deer season, and to reduce confusion and time-loss surrounding the issuance and use of MLD permits by hunters. The amendment to §65.27, concerning Antlerless and Spike-Buck Deer Control Permits, allows such permits to be used during any open season for deer. The amendment is necessary to allow landowners and land managers greater flexibility in controlling deer overpopulation. The amendment to §65.42, concerning Deer, consists of several actions. The amendment would expand the statewide youth-only season to the third weekend in January. This is necessary to execute commission policy to provide greater opportunity to youth and to encourage mentoring. The amendment would also allow other governmental entities to require permits for the harvest of antlerless deer on certain federal and state lands in 11 East Texas counties, which is necessary to ensure a controlled harvest. Further, the amendment would add three counties to the LAMPS program, which is necessary to provide landowners and land managers with an additional option when other permit programs are unfeasible or inappropriate. Also included in the amendment is the partitioning of the bloc of current 'one--buck' counties, allowing a hunter to take one buck in each of two zones, which is necessary to advance the commission directive to provide the greatest opportunity possible without causing depletion or waste. Additionally, the amendment increases the bag limit for antlerless deer and institutes a 14-day antlerless and spike-buck season in 14 counties on the northern Edwards Plateau (which also necessitated the elimination of the muzzleloader-only season in those counties), increases the bag limit for buck deer in 12 South Texas counties, and adds one week to the front end of the season in 28 South Texas counties, all of which advance the commission policy of maximizing hunter opportunity whenever such actions are biologically justifiable and do not result in depletion or waste. Lastly, the amendment removes inaccurate references to river authorities in subsection (b)(5) and (6) while specifying that antlerless deer may not be taken without permits on certain units of public lands, and adjusts a roadway boundary in Victoria County in order to reduce hunter confusion. The amendment to §65.44, concerning Javelina, creates an open season in Archer County. The amendment is necessary to advance commission policy to maximize hunter opportunity. The amendment to §65.62, concerning Quail, alters the opening day to make it occur one week earlier than the opening day for white-tailed deer in years when the seasons would otherwise be concurrent. The amendment is necessary to stagger the opening days for deer and quail to enable persons to participate in both. The amendment to §65.64, concerning Turkey, implements a spring season for Eastern wild turkey in five additional counties, adds one additional weekend in January to the youth-only season, and opens the fall season in 28 South Texas counties on the first Saturday in November rather than the second Saturday in November. The amendment is necessary to implement commission policy to maximize hunter opportunity, to foster youth participation and mentoring activities in the hunting sports, and to establish turkey season to run concurrently with the proposed white-tailed deer season in 28 South Texas counties. The amendment to §65.72, concerning Fish, alters a number of regulations. The amendment changes largemouth bass regulations on Lake O.H. Ivie to allow two largemouth bass of greater than 18 inches to be retained per day, which is necessary to improve fishing quality by reducing the number of bass in the 14-18 inch range. The amendment also modifies regulations for largemouth bass on Lake Sweetwater to implement a slot-limit, which is necessary to reduce mortalities of fish within the slot limit in order to improve fishing quality. Additionally, the amendment alters regulations for largemouth bass on Pinkston Reservoir to implement a new slot limit, allowing the retention of only one largemouth bass of greater than 21 inches per day, and prohibits the use of trotlines, juglines, and throwlines on Lakes Coffee Mill and Davy Crockett, which is necessary to increase fishing quality and to create gear requirements consistent with federal regulations, as the affected impoundments are part of the Caddo National Grasslands. Further, the amendment modifies smallmouth bass regulations on seven lakes to replace the 18-inch minimum length limit/3-fish daily bag limit with a 14-inch minimum length limit/5-fish daily bag limit, which is necessary to simplify regulations. Finally, the amendment increases the bag and possession limits for Spanish mackerel, which is necessary in order to be consistent with regulations in federal waters. The amendment to §65.78, concerning Crabs and Ghost Shrimp, specifies that crab trap float markers be white, which is necessary to clearly delineate crab traps from other devices. The amendment is necessary to aid enforcement.

The amendment to §65.3 will function by defining a term that hunters will need to know in order to lawfully conduct their activities. The amendment to §65.10 will function by providing hunters with an exact description of what constitutes lawful proof-of-sex for turkey. The amendment to §65.11 will function by eliminating the impression that lawful archery equipment can be used to hunt deer during a muzzleloader-only open season. The amendment to §65.26 will function by allowing hunting activities on MLD properties pending the timely submission of survey data to the department, and by allowing a hunter to transport harvested deer to a central location on the property where the deer was killed in order to affix the appropriate MLD tag to the animal. The amendment to §65.27 will function by providing the maximum amount of time for landowners to utilize Antlerless and Spike-Buck Deer Control Permits. The amendment to §65.42, concerning Deer, will function by making regulatory language clearer and more understandable, by providing greater opportunity to hunters, and by providing additional flexibility to landowners to manage deer populations. The amendment to §65.44 will function by creating additional hunting opportunity for javelina. The amendment to §65.62 will function by opening quail season early in years when it would otherwise be concurrent with the opening day of white-tailed deer season. The amendment to §65.64 will function by furnishing additional opportunity for the hunting of Eastern wild turkey, by creating additional opportunity for youth to hunt turkey, and by establishing an opening day for the fall season concurrent with the opening day for white-tailed deer season. The amendment to §65.72 will function by establishing biologically sound limitations on the number and size of various species of fish that may be taken in the public waters of this state, and by creating restrictions on water bodies jointly regulated by state and federal authorities. The amendment to §65.78 will function by establishing a marking convention to create clear distinctions between types of crab traps.

The department received 643 comments opposing adoption of the proposal to add up to seven additional weekends of youth-hunting opportunity. Fifty-nine of the comments stated that the archery season should not be encroached upon by other seasons, 59 stated that youth-season would be taken advantage of by unscrupulous parents, 50 expressed opposition only to additional youth seasons in October, 33 comments stated that the current general season was sufficient for parents to take children hunting, 33 stated safety concerns. The department agrees in part with some of the comments, noting, however, that it has no statutory authority to regulate on the basis of public safety. Changes were made accordingly and the original proposal was truncated to implement one weekend of youth-only hunting in January. The department received 123 comments supporting adoption of the proposed rule. Traditional Bowhunters of Texas and Lone Star Bowhunters Association commented in opposition to the proposal. The department received one comment stating that the department was using the concept of youth-only seasons as an excuse for adults to kill more deer, since the minimum age for the youth-only season is 16 and the minimum age proposed for application for drawn public hunts is eight. The department disagrees with the comment and responds that the minimum age for youth-only seasons was set to be consistent with the hunter education laws of the state, and the minimum age for drawn public hunts is contained in a separate rulemaking. No change was made as a result of the comment.

The department received 16 comments in opposition to the expansion of the LAMPS program. The department disagrees with the comments and responds that the LAMPS program authorizes a biologically defensible harvest of antlerless deer on the basis of acreage and habitat. No changes were made as a result of the comments. The department received 157 comments supporting adoption of the proposed rule.

The department received 29 comments opposed to the proposal to increase the bag limit and implement a special late season for white-tailed deer in 14 counties in the northern Edwards Plateau. The department disagrees with the comment and responds that biological data indicate that additional harvest will not affect the stability of deer populations in that area. No changes were made as a result of the comments. The department received 190 comments supporting adoption of the proposed rule.

The department received 26 comments opposing adoption of the proposal to increase the bag limit for white-tailed deer in 12 South Texas counties. The department disagrees with the comments and responds that biological data indicate that additional harvest will not affect the stability of deer populations in that area. No changes were made as a result of the comments. The department received 174 comments supporting adoption of the proposed rule.

The department received 41 comments opposing the proposal to create a uniform statewide opening day for white-tailed deer. Five comments stated that the South Texas season should also end on the same date as the rest of the date. The department disagrees with the comments and responds that the season length in South Texas is appropriate, given the population dynamics of deer, hunting pressure, and average acreage of landholdings in that area. No changes were made as a result of the comments. The department received 199 comments supporting adoption of the proposed rule.

The department received seven comments opposing the proposal to make Antlerless and Spike-buck Control Permits valid from the Saturday nearest September 30 through the last day of any open season. The commenters stated that they opposed any provision that would allow deer to be taken with firearms during the archery-only season. The department disagrees with the comments and responds that the use or prohibition of firearms on a property is the province of the landowner, and in any event, the permits in question are used on a limited basis and may not be used recreationally, as they are intended as a biological tool to control populations that threaten habitat stability. No changes were made as a result of the comments. The department received 198 comments supporting adoption of the proposed rule.

The department received 47 comments opposing the proposal to split the current 'one-buck' counties into two compartments. The commenters stated that the proposal was not geographically accommodating, as they desired to take bucks in counties close to their own. The department disagrees with the comments and responds that the biological rationale behind the 'one-buck' regulation is that hunting pressure in certain parts of the state is so severe that the harvest of bucks must be heavily restricted in order to assure the reproductive potential of deer herds in those areas. The proposal was an acknowledgment of that fact, and sought to make additional opportunity available in such a way as to avoid depletion. No changes were made as a result of the comments. The department received 188 comments supporting adoption of the proposed rule.

The department received seven comments opposed to the proposal to create a uniform opening day for fall turkey season concurrent with the opening day for white-tailed deer. The department disagrees with the comments and responds that commission policy is to designate concurrent opening days for turkey and deer. With the adoption of the proposal to create a uniform statewide opening day for white-tailed deer, it is necessary to do the same to opening day for turkey in the affected counties. No changes were made as a result of the comments. The department received 201 comments supporting adoption of the proposed rule.

The department received seven comments opposing the proposal to open a spring season for Eastern wild turkey in five additional counties. Three of the comments stated that populations in the affected counties could not withstand hunting pressure. The department disagrees with the comments and responds that the extremely conservative harvest regime, coupled with the requirement that all birds be taken to check stations (enabling the department to establish highly reliable harvest data), allows for the implementation of the season. No changes were made as a result of the comments. The department received 184 comments supporting adoption of the proposed rule.

The department received four comments opposing adoption of the proposal to open a javelina season in Archer County. The department disagrees with the comments and responds that biological data indicate that a season can be provided without the threat of depletion or waste. No changes were made as a result of the comments. The department received 128 comments supporting adoption of the proposed rule.

The department received 88 comments opposed to the proposal to open quail season one week earlier than white-tailed deer season. Twenty-six commenters stated that there would be conflicts between archery hunters and quail hunters. The department agrees in part with the comments. The intent of the proposal was to eliminate the periodic occurrence of concurrent openers for both deer and quail, which in some cases forced persons hunting deer in one part of the state and quail in another to choose which opening day to take advantage of. The department has adopted regulatory wording that would allow an earlier opening day for quail only in years when there would otherwise be a concurrent opening day with deer season. The department received 158 comments supporting adoption of the proposed rule.

The department received 23 comments opposing adoption of the proposed harvest regulations for smallmouth bass on Lakes Belton (Bell County), Cisco (Eastland County), Greenbelt (Donley County), Oak Creek (Coke County), Stillhouse Hollow (Bell County), White River (Crosby County), Whitney (Bosque and Hill Counties) . The commenters stated that a belief that the change will negatively impact the quality of smallmouth bass angling, especially for larger fish. The department disagrees and responds that much of the angling for smallmouth bass is catch and release, and that periodic stocking exerts the greatest influence on the current population structure; therefore, the proposed changes will have little impact on smallmouth bass in these reservoirs. No changes were made as a result of the comments. The department received 57 comments in support of adoption of the proposed rule.

The department received 11 comments in opposition to the proposed harvest regulations for largemouth bass on Lake Sweetwater (Nolan County). The comments indicated philosophical opposition to slot limits as a management tool. The department disagrees with the comments and responds that slot limits are a biologically useful tool in fisheries management and should improve the quality of fishing. No changes were made as a result of the comments. The department received 56 comments in support of adoption of the proposed rule.

The department received 10 comments opposed to adoption of proposed harvest regulations for largemouth bass on Pinkston Reservoir (Shelby County). The commenters favored the current slot, other modifications of the slot, or increased stocking. The department disagrees with the comments and responds that the proposed changes are appropriate for the population structure and growth potential in Pinkston. No changes were made as a result of the comments. The department received 51 comments in support of adoption of the proposed rule.

The department received 20 comments in opposition to the proposed harvest regulations for largemouth bass on O. H. Ivie Reservoir (Coleman, Concho, Runnels Counties). The commenters favored various other options, such slot limits. The department disagrees with the comments and responds that the adopted regulations are believed to be the best way to remove the targeted sizes of bass from the reservoir. No changes were made as a result of the comments. The department received 59 comments in support of adoption of the proposed rule.

The department received 22 comments in opposition to the proposed gear restrictions on Lakes Coffee Mill and Davy Crockett (Fannin County). The commenters were philosophically opposed to restrictions on the use of trotlines, throwlines, and juglines in general. The department disagrees with the comments and responds that the restrictions are appropriate to achieve the goal of improving catfish angling, as well as to standardize regulations with those of the controlling authority for these water bodies. No changes were made as a result of the comments. The department received 42 comments in favor of adoption of the proposed regulation.

The department received 10 comments opposed to the adoption of the proposal to increase bag limits for Spanish mackerel. The department disagrees with the comments and responds that monitoring data indicate that the population is able to sustain additional harvest. No changes were made as a result of the comments. The department received 29 comments in favor of adoption of the proposed regulation.

The department received five comments in opposition to the proposal to require all non-commercial crab-trap floats to be white. Three of the comments stated that white would be difficult to see under low-light conditions. The department disagrees with the comments and responds that the regulation is not intended as an aid to navigation, but as a means of distinguishing non-commercial commercial crab traps from commercial crab traps.

Texas Wildlife Association commented in favor of adoption of the proposed rules.