Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

The Texas Parks and Wildlife Commission adopts amendments to §§65.3, 65.11, 65.24, 65.26, 65.34, 65.42, 65.64, 65.72, and 65.82, and new §65.49, concerning the Statewide Hunting and Fishing Proclamation. Sections 65.11, 65.26, 65.42, 65.64 and 65.72 are adopted with changes to the proposed text as published in the February 24, 2006, issue of the Texas Register (31 TexReg 1192). Sections 65.3, 65.24, 65.34, 65.49, and 65.82 are adopted without changes and will not be republished.

The change to §65.11, concerning Lawful Means, corrects an error in an internal reference in paragraph (5)(C)(iv). The text as proposed referred to subsection (a)(1) of the section. The reference should be to paragraph (1)(E).

The change to §65.26, concerning Managed Lands Deer Permits (MLDP)--White-tailed Deer, also corrects erroneous internal references. Under current rule, stamp requirements and regulations applying to the take of white-tailed deer during the archery-only and muzzleloader-only seasons apply on properties that receive only antlerless MLD permits, but do not apply on properties that receive both buck and antlerless deer MLD permits. Due to redesignations caused by the adoption of the amendment to §65.42, concerning Deer, the internal references in §65.26 must be changed to be correct. References to §65.42(b)(8) are changed to refer to §65.42(b)(17) and references to §65.42(b)(9) are changed to refer to §65.42(b)(18). Since the proposed text clearly indicates that the department's intent, the effect of the change is nonsubstantive.

The change to §65.64, concerning Turkey, eliminates proposed language that would have comported the section with a proposed amendment to §65.25, concerning Wildlife Management Plan (WMP), which is necessary because the proposed amendment to §65.25 is not being adopted. The change rewords the language defining spring youth-only seasons to ensure that youth seasons always occur one week prior to the opening of the general season. The commission's intent in the creation of youth-only seasons was to provide a weekend during which adult mentors could foster an appreciation for wildlife conservation and recreational hunting in young hunters. Last year, the spring turkey season in many counties was lengthened. In light of those changes, the current wording of the youth season rule proves problematic, in that the current wording would allow the general season and the youth season to overlap once every eight years. Therefore, the rule has been changed such that the youth-only weekend will always be separate from the general season.

The change to §65.72, concerning Fish, places a one-year term of effectiveness on the use of lawful archery equipment to take catfish. The change is necessary in order to allow the department to design a method for evaluating the biological impacts of bowfishing upon catfish populations.

The amendment to §65.3, concerning Definitions, alters the current definition of 'wildlife resources;' adds definitions for 'alligator gig' and 'alligator hide tag;' and adds a species of fish to the list of fishes designated as game fish.

Parks and Wildlife Code, §61.005, defines wildlife resources as, "all wild animals, wild birds, and aquatic animal life." The amendment is necessary to expand the applicability of the subchapter to include alligators, because provisions governing the recreational take of alligator have been relocated from another subchapter to this subchapter.

The definition of 'alligator gig' also has been added as a result of the relocation of recreational hunting rules for alligators to the Statewide Hunting and Fishing Proclamation. The amendment is necessary because there are other types of gigs used in angling that are not lawful for the take of alligators; therefore, the regulations must stipulate the nature of a lawful alligator gig.

The definition of 'alligator hide tag' also has been added as a result of the relocation of the recreational hunting rules for alligators. The hide tag is a federal requirement pursuant to the Convention on International Trade in Endangered Species (CITES) intended to provide a means for identifying lawfully harvested alligators for purposes of international trade. The amendment is necessary to distinguish the alligator hide tag from other types of tags referenced in the rules.

The amendment also adds tripletail to the list of game fishes. The tripletail is becoming increasingly popular with recreational anglers, and to offer greater protection to the species, the department proposes to designate tripletail as a game fish, which can be taken lawfully only by pole and line. The amendment is necessary to add further protection to an increasingly popular sport fish.

The amendment to §65.11, concerning Lawful Means, establishes the means of take that are lawful for use on alligators, and would extend the prohibition on the use of rimfire ammunition, fully automatic firearms, and silencers to include alligators. As addressed in the discussion of the adoption of new §65.49 elsewhere in this rulemaking, all provisions relating to the hunting of alligators have been relocated from 31 TAC Chapter 65, Subchapter P to the Statewide Hunting and Fishing Proclamation. In general, the provisions have been transferred without change; however, there are several exceptions, as follows.

The amendment to §65.11 is taken verbatim from current §65.356, which the department is repealing in a rulemaking published elsewhere in this issue, except for the provisions in §65.11(1)(E) and (5)(A)(v), which provide for the limited use of firearms to take alligators on private lands and waters. Under current rules, firearms are a prohibited means for taking alligators, although an alligator may be dispatched with a firearm once the alligator has been caught on a lawful taking device. Paragraph (1)(E) would allow the take of alligator by means of firearms on private lands except 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 (hereafter referred to as 'core counties') and on properties in other counties where the department has conducted biological surveys and issued CITES tags to the landowner. The area represented by the core counties is the prime historical habitat for the American alligator in Texas, consisting primarily of freshwater swamps and marshes, but also including nearby rivers, lakes, and smaller bodies of water, in areas where freezing conditions are rare or of short duration. In this area of the state, alligator hunting is commercially viable and must be regulated, both to equitably distribute the harvest and to manage the species for sustainable harvest and prevention of depletion, since alligators in this area of the state are a key species in certain wetland ecosystems. Means of take otherwise remain limited to 'capture'-type devices such as hook-and-line, snares, gigs, and archery equipment, with the requirement that all taking devices be connected to a line of at least 300-lb. test to ensure recovery of all alligators. When free-swimming alligators are shot with a firearm, they typically sink very quickly and become difficult or impossible to locate and recover. Therefore, the use of firearms to take alligators has been prohibited in core counties to minimize wounding loss and subsequent waste of meat and hides.

Outside of the core counties, where alligator populations exist they are ephemeral or the result of population expansion into marginal or less-than-desirable habitats (with the notable exception of the greater Houston metropolitan area, which is geographically within the historic range of the American alligator, but heavily urbanized). In these areas of the state, alligators must move frequently as landscape water conditions change, and are often seen traveling across land in search of new waters. Alligators near human habitation are often found crossing roads, entering suburbs and finding shelter in artificial ponds and even an occasional swimming pool during the drier months. New paragraph (1)(E) maintains the prohibition on the use of firearms in the core counties, would allow the use of firearms to take alligators on private property elsewhere in the state (provided that CITES tags have not been issued for the property), and would prohibit the take of alligators by means of firearms from, on, in, or over public water. The department reasons that the risk of wounding loss is negligible for the take of alligators on dry land and in private waters, but increases substantially on public waters. The amendment is necessary to provide additional hunting opportunity in areas of the state where alligator populations are expanding but where long-term viability of populations is unlikely because of erratic fluctuations in habitat conditions.

Additionally, the amendment modifies the provisions governing the use of line sets. Under current rules, a hunter must possess at least one valid hide tag per line set in use. The provisions of new §65.49 would allow hunters outside of the core counties to take one alligator per year (unless they are on a property for which the department has issued hide tags) and to tag the alligator after harvest. Obviously, a hunter under these circumstances will not be able to possess a hide tag while they are hunting; therefore, the current rule language must be altered. The provision is necessary to prevent enforcement conflicts.

Under current rules, it is unlawful to hunt game animals or game birds with a fully automatic firearm or any firearm equipped with a silencer or sound-suppressing device, or to use rimfire ammunition to hunt deer, antelope, or desert bighorn sheep. The amendment would extend the applicability of those provisions to include alligators.

The amendment to §65.24, concerning Permits, clarifies that the section does not apply to deer harvested under MLD permits. Under current rules, persons harvesting deer under an MLD permit are not required to possess an MLD tag on their person. The current rule acknowledges that landowners face logistical problems related to permit allotment, distribution, and use. Hunters are not always successful, and to require each hunter to have a permit on their person while they are in the field means that unused permits would have to be returned to the landowner and reissued to subsequent hunters, which is inefficient, particularly on larger properties that might entertain dozens of hunters in a season. The department thus allows hunters on MLD properties to harvest a deer and then immediately take it by the most direct route to a location on the property where the MLD tag can then be attached to the carcass. The amendment is necessary to eliminate a conflict between the provisions of §65.24 and the provisions of §65.26 and §65.34.

The amendment to §65.26, concerning Managed Lands Deer Permits (MLDP)--White-tailed Deer, rewords subsection (d) to remove unintended potential for misunderstanding. The current rule provides that a 'deer killed under the authority of an MLDP' must immediately be tagged or taken to a tagging station on the property. The department has become aware that this provision has been interpreted by some to mean that when landowners or hunters are harvesting deer they have the option of using an MLDP or a tag from a hunting license, or that if all MLDPs have been used, additional harvest is acceptable. A core element of the biological effectiveness of the MLDP program is the harvest quota established in the wildlife management plan. At the point that MLDPs have been issued to a landowner, the harvest quota is not a suggestion or a recommendation; it is the total number of deer that may be lawfully harvested from the property for which the permits were issued. Under the provisions of §65.25, concerning Wildlife Management Plan (WMP), an approved WMP, specifying a harvest quota for antlerless deer or both buck and antlerless deer, is required for the issuance of Managed Lands Deer Permits. Additionally, under the provisions of §65.26(g), exceeding the harvest quota is sufficient reason for the department to deny further issuance of permits. Therefore, in order to eliminate potential confusion, the amendment makes clear that all deer taken on a property for which MLDPs (buck, antlerless, or both) have been issued must be tagged with an applicable MLDP, and that when the harvest quota for the property has been achieved, no additional deer may be taken on the property. The amendment is necessary to prevent confusion and possible inadvertent misunderstandings.

The amendment to §65.34, concerning Managed Lands Deer Permits (MLDP)--Mule Deer, effects changes to address the same situation discussed in the amendment to §65.26, and is necessary for the same reason.

The amendment to §65.42, concerning Deer, implements special antler restrictions in Bell, Bosque, Bowie, Burleson, Camp, Cass, Cherokee, Comal (east of IH 35), Comanche, Coryell, Delta, Eastland, Erath, Fannin, Franklin, Gregg, Hamilton, Harrison, Hays (east of IH 35), Hopkins, Houston, Lamar, Lampasas, Leon, Marion, Morris, Nacogdoches, Panola, Rains, Red River, Rusk, Sabine, San Augustine, Shelby, Somervell, Titus, Travis (east of IH 35), Upshur, Williamson, and Wood counties. Hunting pressure on buck deer in these counties has been excessive for many years. In 1971, the bag limit in most counties in the eastern third of the state was reduced from two bucks to one in an effort to mitigate excessive hunting pressure. Despite the reduction, the data continues to indicate an excessive harvest of bucks, which results in very poor age structure. Although the one-buck bag limit redistributed the harvest among hunters, it did not produce a significant amount of older age bucks in the herd. Under the one-buck bag limit, very few bucks survive into the older age classes (older than three years). Research results indicate that poor age structure within a buck herd creates a longer breeding season, which in turn leads to a longer fawning season and a reduction in fawn production. Poor age structure also contributes to adverse hunter satisfaction.

In April of 2002, the commission adopted a three-year experimental antler restriction regulation in six counties in the Oak Prairie ecoregion, with the following goals: improve the age structure of the buck herd, increase hunter opportunity, and encourage landowners and hunters to become more actively involved in better habitat management. The antler restriction regulation was designed to protect the majority of younger bucks until those deer could reach a level of advanced physical maturity.

The experimental regulation has given the department considerable insight into the impact that it can have on a buck herd. Department data indicate that the experimental regulation has been effective. The proportion of bucks younger than 3.5 years old in the harvest dropped from 79% to 29% during the 2004-2005 hunting season. Prior to the implementation of the regulation, only 20% of the harvested bucks were at least 3.5 years old; however, by the third year of the experiment, 71% of the harvested bucks were at least 3.5 years old. It is important to note that while buck harvest dropped 38% during the first year of the experiment (compared to the average harvest from 1997-2001), the harvest during the second year of the experiment exceeded the five-year average prior to the regulation change. The data also showed a decline in the harvest of spike bucks and an increase in the harvest of bucks with an inside spread of 13 inches or greater, which means that one effect of maintaining a one-buck limit under the antler restrictions is that hunting pressure is deflected from the spike-buck segment of the population, which is undesirable. Therefore, in April 2004 the department implemented a two-buck bag limit in counties with antler restrictions, with the proviso that if a hunter took two lawful bucks at least one of them had to have at least one unbranched antler. By adding the second buck to the bag, the department intended to encourage the harvest of spike bucks, which research has indicated are less likely to develop into lawful bucks (as defined for the counties with the antler-restriction rules in place).

Given the results of the experimental regulations, the department has endeavored to identify additional counties where implementation might yield similar results. The criteria used for candidate counties were: the county currently must be a one-buck county, 60% of the buck harvest in the county must consist of bucks less than 3.5 years of age, and the county must have a contiguous border with another county in which antler restriction regulations have been implemented. On this basis, the department identified the 40 counties affected by the amendment.

The amendment to §65.42 also implements a four-deer bag limit and a late muzzleloader-only for the entirety of Upton County. Under current rules, the bag limit in the portions of Upton County that are either north of U.S. Highway 67 or both south of U.S. Highway 67 and west of State Highway 349 is three deer. Data indicate that deer populations in the northern and western parts of the county are increasing and able to withstand additional hunting pressure. Additionally, the counties adjoining Upton County on the east and northeast (Glasscock and Reagan counties) contain deer densities similar to those found in Upton County but are under a more liberal regulation (5 deer; no more than 2 bucks) than that being implemented in Upton County. The regulations have been in effect in Glasscock and Reagan counties for five years, and the deer herds in these counties have experienced no adverse impacts. The department therefore does not anticipate that the amendment will result in either waste or depletion of the resource in Upton County. The portion of the county that has had a four-deer bag limit has also had a 14-day late muzzleloader-only season. The expansion of the four-deer bag limit to countywide applicability also would entail the expansion of the muzzleloader season countywide. Based on hunter-success data from other counties, the harvest of deer during the muzzleloader in Upton County should be negligible as a component of overall harvest.

New §65.49, concerning Alligators, establishes the open seasons, rules for tag issuance and use, reporting requirements, and provisions for the sale of alligators taken under a Texas hunting license. Prior to 2005, an alligator hunting license was required to hunt alligators in this state, and all provisions relating to the hunting of alligators were located in 31 TAC Chapter 65, Subchapter P. The passage of House Bill 2026 by the 79th Texas Legislature eliminated the alligator hunting license. As a consequence, the department has determined that it is appropriate to relocate all provisions relating to recreational alligator hunting from Subchapter P to the Statewide Hunting and Fishing Proclamation. In general, the provisions are transferred without change; however, there are several exceptions, as follows.

The new section provides for the harvest of alligator by means of firearms under certain conditions, which is addressed in the discussion of the changes to §65.11.

Under federal law, all alligators harvested in the United States must be permanently tagged with a CITES (Convention on the International Trade in Endangered Species) tag. Although the American alligator is not endangered, it is similar in appearance to other reptilian species that are endangered. The CITES tag functions to distinguish legally taken reptiles from unlawfully taken reptiles. Under the current system, the U.S. Fish and Wildlife Service annually issues CITES tags to the department, which then issues the tags to landowners, who then use or distribute the tags as they see fit. In order to determine appropriate levels of tag issuance and subsequent harvest, the department conducts annual surveys of populations, nesting activity, and harvest in counties containing commercially viable alligator populations. From this data the department derives the annual harvest quotas that form the basis for the issuance of CITES tags to landowners. At this time, the majority of tag issuance occurs in those areas of the state considered to be critical alligator habitat. In those counties (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, hereafter referred to as 'core' counties), a licensed hunter may take one alligator per CITES tag in possession under current regulations. Under the new rule, tag issuance and harvest in core counties and on properties outside of core counties for which the department has issued hide tags would continue to be conducted in this manner. However, in the remainder of the state, a licensed hunter is now entitled to harvest one alligator per year, provided the take occurs on private property. Under the new section, hunters who harvested an alligator would immediately complete and affix a Wildlife Resource Document to the alligator, and complete and mail to the department within 72 hours a Harvest Report (which will be available in the Texas Parks and Wildlife Outdoor Annual, at department law enforcement offices, and on the department's website), accompanied by a $20 payment for a CITES tag. The department would then mail a CITES tag to the hunter, who would then permanently tag the alligator. The department does not anticipate that the additional harvest under the new rule will be biologically significant. Although the department conducts comprehensive biological survey efforts in the core counties, limited resources do not allow for similar efforts everywhere in the state; however, the federal issuance of CITES tags to Texas, which is based on overall harvest data submitted to the U.S. Fish and Wildlife Service (Service) on an annual basis, has never been exceeded; in fact, tag utilization does not typically exceed 86% of tag issuance. Therefore, the department reasons that additional demand, since it will be restricted to areas outside of the core counties (where the overwhelming majority of the alligator population occurs), is unlikely to exceed permit availability and, in any event, since the total permit issuance by the Service cannot be exceeded, harvest on a macro level will not be biologically significant.

Additionally, the amendment prohibits the employment of more than one taking device per unused hide tag in possession at a time on properties for which hide tags have been issued. Under current regulations, hide tags must be obtained prior to hunting and hunters are prohibited from utilizing more than one taking device per unused hide tag in possession. The one-to-one ratio of taking devices to tags was established to prevent hunters from accidentally exceeding the number of alligators authorized for take, and to prevent the practice of 'culling,' whereby an unscrupulous person would take more alligators than authorized and retain only the most desirable individuals for tagging. Because new §65.49 allows tags to be issued on a post-harvest basis in parts of the state where the bag limit is one alligator, it is necessary to create a parallel to the current requirements for persons hunting with hide tags in hand. The amendment is necessary to prevent persons from exceeding bag limits and overharvest of the resource.

The amendment to §65.72, concerning Fish, consists of several changes. The amendment adds Kinney County to the list of counties where bait fish are restricted to common carp, fathead minnows, gizzard and threadfin shad, golden shiners, goldfish, Mexican tetra, Rio Grande cichlid, silversides (Atherinidae family), and sunfish (Lepomis). The restrictions were promulgated to protect endangered pupfish (Cyprinodon) in the western Texas posed by the introduction and potential establishment of exotic species that prey upon or compete with indigenous species. The amendment also protects the Devils River minnow, which only occurs in Val Verde and Kinney counties.

The amendment also implements an 18-inch minimum length limit for largemouth bass on Marine Creek Reservoir (Tarrant County). The amendment is necessary because Marine Creek Reservoir has been selected to be involved in the Operation World Record research project. The project will involve stocking coded-wire tagged largemouth bass and monitoring their growth for a minimum of five years following stocking. The stocked bass are ShareLunker offspring and are valuable, considering the limited number that will be produced and their importance to the project. The ShareLunker program allows anglers to loan largemouth bass weighing 13 pounds or more to the department for spawning and research purposes, which include the study of genetics, life history, growth, performance, behavior, and competition. The increased length limit will protect the stocked bass through at least 18 inches and will increase the department's ability to evaluate their performance in natural systems.

The amendment to §65.72 also would allow the take of channel, blue, and flathead catfish by means of lawful archery equipment or crossbows. The use of archery equipment has historically been prohibited, primarily because of concerns that the guaranteed mortality of fish caught by mistake or in violation of legal length limits could negatively impact reproductive potential and age distribution in sensitive populations. Based on the estimated number of persons believed to currently engage in the take of fish by archery equipment (less than 1% of all licensed anglers), the department has determined that the take of catfish by archery equipment probably will not result in significant impacts to catfish populations.

The amendment to §65.72 also eliminates the tagging requirement for tarpon. Under the previous rule, no person could catch and retain a tarpon of less than 80 inches in length unless the fish was tagged with a trophy tarpon tag. The amendment eliminates the tagging requirement and replaces it with a bag limit of one tarpon of 80" in length or longer per person per day. The amendment is necessary because the department is seeking ways to reduce regulatory complexity and paperwork. The amendment affords the same protection to the resource as the previous rule while allowing for pursuit and retention of a record size tarpon.

The amendment to §65.72 also modifies the rules governing possession of black drum. Until this rulemaking, black drum were managed by means of a bag limit combined with minimum and maximum size limits. The amendment allows a person to keep one black drum of greater than 52 inches in length per day as part of the five-fish daily bag limit. The amendment is necessary because the department would like to make it possible for anglers to pursue and retain a state record black drum.

The amendment to §65.72 also reduces the possession limit for flounder taken under a recreational license. Prior to this rulemaking, the possession limit for flounder was twice the daily bag limit. Thus, with a daily bag limit of 10, the possession limit for flounder was 20; thus, for those fishing past midnight, a 20-fish possession limit applied. The amendment makes the possession limit identical to the daily bag limit. The amendment is necessary because data indicate that after a long-term declining trend in abundance, flounder have begun to stabilize. The amendment will aid in maintaining or enhancing the current level of recovery by exerting a limited but positive impact on flounder stocks and should aid law enforcement by providing less of an incentive for recreational catches to enter the commercial market.

The amendment to §65.72 also implements bag and minimum size limits for tripletail. The amendment is necessary because the species is becoming increasingly popular with anglers. The size limit should protect young females from harvest prior to first spawn and the bag limit will have the effect of distributing harvest opportunity. The department intends to continue monitoring populations to see what effect the regulation change has on the population of tripletail in Texas waters.

The amendment to §65.82 prohibits the take of largetooth sawfish (Pristis perotteti). The amendment is necessary because the U.S. Fish and Wildlife Service has listed the smalltooth sawfish (Pristis pectinata) as endangered. Due to the extreme difficulty in distinguishing the smalltooth sawfish from the largetooth sawfish, the department believes that protection of both species is the only way to protect the listed species.

The amendment to §65.3, which alters the current definition of 'wildlife resources;' adds new definitions for 'alligator gig' and 'alligator hide tag;' and adds a species of fish to the list of fishes designated as game fish, will function by providing unambiguous explanations of the terms used in the subchapter.

The amendment to §65.11 will function by establishing the means of take that are lawful for use on alligators.

The amendment to §65.24 will function by clarifying that the section does not apply to deer harvested under MLD permits.

The amendment to §65.26 will function by clarifying that all white-tailed deer taken on a property for which Managed Lands Deer Permits (MLDP) have been issued must be tagged with an applicable MLDP, and that when the harvest quota for the property has been achieved, no additional deer may be taken on the property.

The amendment to §65.34 will function by clarifying that all mule deer taken on a property for which Managed Lands Deer Permits (MLDP) have been issued must be tagged with an applicable MLDP, and that when the harvest quota for the property has been achieved, no additional deer may be taken on the property.

The amendment to §65.42, concerning Deer, will function by implementing special antler restrictions for the take of white-tailed deer in Bell, Bosque, Bowie, Burleson, Camp, Cass, Cherokee, Comal (east of IH 35), Comanche, Coryell, Delta, Eastland, Erath, Fannin, Franklin, Gregg, Hamilton, Harrison, Hays (east of IH 35), Hopkins, Houston, Lamar, Lampasas, Leon, Marion, Morris, Nacogdoches, Panola, Rains, Red River, Rusk, Sabine, San Augustine, Shelby, Somervell, Titus, Travis (east of IH 35), Upshur, Williamson, and Wood counties, and by creating a countywide bag limit of four white-tailed deer in Upton County, accompanied by a late muzzleloader-only season.

New §65.49 will function by establishing the open seasons, means and methods of take, rules for tag issuance and use, reporting requirements, and provisions for the sale of alligators taken under a Texas hunting license.

The amendment to §65.64 will function by establishing a spring youth-only season for turkey that always takes place the weekend prior to the opening of the general spring open season.

The amendment to §65.72 will function by adding Kinney County to the area where bait fish are restricted to common carp, fathead minnows, gizzard and threadfin shad, golden shiners, goldfish, Mexican tetra, Rio Grande cichlid, silversides (Atherinidae family), and sunfish (Lepomis); by implementing an 18-inch minimum length limit for largemouth bass on Marine Creek Reservoir; and by allowing the take of channel, blue, and flathead catfish by means of lawful archery equipment or crossbows. The amendment will also function by controlling tarpon and black drum harvest by means of a minimum length limit; by reducing the possession limit for flounder taken under a recreational license; and by implementing bag and minimum size limits for tripletail.

The amendment to §65.82 will function by prohibiting the take of sawfish (Pristis perotteti).

The department received 62 comments opposing adoption of the amendment to §65.42 that implements antler restriction regulations in 40 additional counties. Several commenters offered a specific reason or reasons for opposition. Those comments, and the department's responses, follow.

One commenter opposing adoption stated that instead of harvest regulations, the department should implement harvest incentives. The department disagrees with the comment and responds that in a general sense, the department possesses neither the fiscal resources nor the manpower to create incentives for a stratified deer harvest; however, it is a longstanding policy of the commission that the management goals of landowners and hunters are the most appropriate incentives. No changes were made as a result of the comment.

One commenter opposing adoption stated that the antler restrictions were unfair to archery hunters. The department disagrees with the comment and responds that the rule is designed to protect certain age classes of buck deer, irrespective of means and methods of take. No changes were made as a result of the comment.

One commenter opposing adoption stated that compliance would be difficult in heavily vegetated areas where visibility could be an issue. The department disagrees with the comment and responds that one of the rule of gun safety is that persons shouldn't shoot at targets they cannot see clearly. No changes were made as a result of the comment.

Seven commenters opposing adoption stated that waste of game will occur as a result of the rule, because hunters will shoot and then leave deer that do not meet the definition of a lawful buck. The department disagrees with the comments and responds that it is incumbent upon any person who engages in hunting to know and obey the pertinent rules, and that compliance with the antler-restriction rules is no different than compliance with any other hunting rule. No changes were made as a result of the comments.

Three commenters opposing adoption stated that it is too difficult to determine whether a buck is lawful or not. The agency disagrees with the comments and responds that the regulations are clear as to what constitutes a legal buck. The department also notes that intensive outreach and education efforts in counties where the rules have been implemented in previous years have been successful, which is reflected in department surveys indicating that very few people feel that identification of lawful bucks is a problem. No changes were made as a result of the comments.

One commenter opposing adoption stated that the antler restriction is inappropriate west of IH-35. The department disagrees with the comment and responds that the rule is designed for application in any area where the harvest of yearling bucks exceeds 60%. No changes were made as a result of the comment.

One commenter opposing adoption stated that the rule will result in an increase in poaching. The department disagrees with the comment and responds that the vast majority of hunters are law-abiding citizens. No changes were made as a result of the comment.

Three commenters opposing adoption stated that the antler restriction rules should not apply to youth. The department disagrees with the comments and responds that the rule is designed to protect certain age classes of buck deer, irrespective of the age of the hunter. Allowing the take of buck deer within the protected class would frustrate the attainment of the goal the rule is intended to accomplish. No changes were made as a result of the comments.

One commenter opposing adoption stated that the rule will result in the overharvest of spike bucks. The department disagrees with the comment and responds that the rule is expected to cause an overall decline in the harvest of young bucks, even if more spikes are shot. The department also notes that the additional harvest of spike bucks will not negatively impact the overall population. No changes were made as a result of the comment.

One commenter opposing adoption stated that the rule will result in inferior buck deer by permanently protecting all deer that do not reach the 13-inch standard. The department disagrees with the comment and responds that research data indicate that fewer than 5% of mature buck deer will have less than a 13-inch spread. The intent of the rule is to remove pressure on younger bucks, which will also have the benefit of allowing those bucks to have a longer reproductive life. No changes were made as a result of the comment.

One commenter opposing adoption stated that the department's data from the three-year period the rules have been in effect does not prove the rule to be successful. The department disagrees with the comment and responds that the data indicate that the rule has been extremely successful. In counties where the rule has been implemented, the total buck harvest after two years is near or surpasses pre-rule levels and is composed of mature bucks, which hunters prefer. No changes were made as a result of the comment.

One commenter opposing adoption stated that the department should not dictate trophy regulations to landowners and hunters. The agency disagrees with the comment and responds that the regulations are not aimed at trophy management and do not abrogate any right enjoyed by landowners. The intent of the regulation is to provide an ample reproductive supply of older buck deer by preventing over harvest of young bucks. No changes were made as a result of the comment.

Three commenters opposing adoption stated that the rule will promote "basket" racks. The department disagrees with the comment and responds that harvest data from counties where the rules have been in effect and other research data do not indicate that the rule results in a trend of increasing numbers of basket racks, if what is meant by the term is antlers that never attain a 13-inch inside spread. The intent of the rule is to remove pressure on younger bucks, which will also have the benefit of allowing those bucks to have a longer reproductive life. No changes were made as a result of the comment.

One commenter opposing adoption stated that a person should be allowed to take any deer older than 4.5 years, irrespective of antler characteristics. The department disagrees with the comment and responds that while the rule generally is intended to result in the harvest of most 4.5-year-old bucks, in terms of compliance it is very difficult to determine the age of a buck without some sort of objective standard to act as both a guide and a legal standard. The 13-inch inside spread requirement has proven to be a very reliable indicator that a buck has reached harvestable age. No changes were made as a result of the comment.

Two commenters opposing adoption stated that the rule will decrease hunter opportunity. The department disagrees with the comments and responds that during the first three years the rules were in effect in the six 'experimental' counties, buck harvest and total deer harvest decreased only during the first year, rebounding in subsequent years to surpass the pre-rule harvest numbers. Therefore, if anything, the rules can be expected to increase hunter opportunity. No changes were made as a result of the comments.

One commenter opposing adoption stated that the department's locker plant data is biased because not all harvested deer are taken to locker plants. The department disagrees with the comment and responds that locker plant data is not regarded as an absolutely indicative dataset at fine levels of resolution, but as a general indicator of the morphological characteristics of deer harvested in the areas where the rule has been implemented. The department further notes that succeeding years of locker plant data have been consistent with the predicted trend in buck morphology. No changes were made as a result of the comment.

One commenter opposing adoption stated that the department's mail surveys are not accurate because persons opposed to the proposed rules didn't respond. The department disagrees with the comment and responds that survey data is not regarded as an absolutely indicative dataset at fine levels of resolution, but as a helpful indicator or gauge of the attitudes of hunters and landowners. The department concludes that persons who do not respond to the surveys can be presumed to be ambivalent at best to the rules. No changes were made as a result of the comment.

One commenter opposing adoption stated that implementation of the rule should be at the option of the landowner. The department disagrees with the comment and responds that optional implementation would not be effective. During the years when buck harvest in the affected counties was not restricted other than by the presence of the one-buck bag limit, buck harvest was excessive, especially in younger age classes. Therefore, to protect those age classes, the rule must be applied universally in each county. No changes were made as a result of the comment.

Two commenters opposing adoption stated that the rule will discourage youth, elderly, and new hunters. The department disagrees with the comments and responds that, as noted earlier, since buck harvest and total deer harvest can be expected meet or exceed pre-rule levels within two years of implementation of antler restrictions, hunter opportunity will therefore increase, including opportunity for youth, elderly, and new hunters. No changes were made as a result of the comments.

Once commenter opposing adoption stated that the purpose of the rule is to promote antler hunting for greedy people. The department disagrees with the comment and responds that it has no statutory authority to regulate with the intent of influencing the price of hunting rights negotiated between landowners and hunters. No changes were made as a result of the comment.

The Texas Wildlife Association and the Nails Creek Wildlife Management Association commented in support of adoption of the proposed amendment.

The department received 253 comments supporting adoption of the amendment.

The department received one comment in support of adoption of the amendment to expand the four-deer bag limit for white-tailed deer to the entirety of Upton County and include a muzzleloader-only season countywide.

The department received 89 comments opposing the adoption of the amendments and new section affecting alligators. Several commenters offered a specific reason or reasons for opposition. Those comments and the department's responses, follow.

One commenter opposing adoption stated that Harris and Fort Bend counties should be core counties. The department disagrees with the comment and responds that Harris and Fort Bend counties are heavily urbanized and therefore incompatible with alligator management/hide tag issuance methodologies currently used in core counties. No changes were made as a result of the comment.

One commenter opposing adoption stated that the rules will lead to overhunting. The department disagrees with the comment and responds that the U.S. Fish and Wildlife Service (Service) determines the upper boundary of the annual harvest in Texas, based on population and harvest data provided by the department each year. Additionally, in the core counties (the area of the state where 95% of the state's alligator population resides) harvest is carefully controlled to maintain sustainability. In the extremely unlikely event that alligator numbers should decline significantly (whether by hunting or other factors), the department and the Service would take appropriate action to stabilize populations. No changes were made as a result of the comment.

Six commenters opposing adoption stated that the rules will result in the waste of meat and hides. The department disagrees with the comment and responds that it believes that persons who choose to hunt an alligator are interested in obtaining meat and hides and will make the effort to do so. No changes were made as a result of the comments.

Four commenters opposing adoption stated that it should be unlawful to shoot free-swimming alligators. The department disagrees with the comment and responds that the provision allowing for the shooting of alligators stipulates that the alligators must be on private property. Typically, water bodies on private property are small and often not very deep, meaning that an alligator can be recovered with relative ease. Public water bodies are generally too large and too deep, which complicates recovery due to physical limits as well as trespass issues. No changes were made as a result of the comments.

One commenter opposing adoption stated that the take of alligators by firearms should be prohibited. The department disagrees with the comment and responds that firearms are a very effective means for taking alligators quickly and lethally. No changes were made as a result of the comment.

Two commenters opposing adoption stated that the season in non-core counties will allow females to be taken off the nest and will lead to juvenile mortality. The department disagrees with the comment and responds that overall harvest is not expected to be large enough to biologically impact alligator populations, and that in fact, a spring season may curb nuisance incidents in urban and rapidly developing areas. No changes were made as a result of the comments.

One commenter opposing adoption stated that there should be one uniform regulatory approach for the whole state. The department disagrees with the comment and responds that the regulatory regime for alligators in the southeastern part of the state has a long history and is necessary to maintain a sustainable commercial alligator industry in the region. The expansion of alligator hunting opportunity into the remainder of the state is impossible under the regime used in the southeastern counties; therefore, a regime appropriate to those counties where alligators are not as abundant and there is no viable commercial industry had to be developed. No changes were made as a result of the comment.

Seven commenters opposing adoption stated that the rule will encourage poaching and gear stealing. The department disagrees with the comment and responds that the vast majority of hunters are law-abiding citizens. No changes were made as a result of the comment.

Two commenters opposing adoption stated that the rules will devastate alligator populations. The department disagrees with the comment and responds that overall harvest is not expected to be large enough to biologically impact alligator populations, and that additionally, in the core counties (the area of the state where 95% of the state's alligator population resides), harvest is carefully controlled to maintain sustainability. In the extremely unlikely event that alligator numbers should decline significantly (whether by hunting or other factors), the department and the Service would take appropriate action to stabilize populations. No changes were made as a result of the comments.

One commenter opposing adoption stated that the rules would prevent landowners in southeast Texas from controlling the number of alligators harvested on their property. The department disagrees with the comment and responds that the total harvest of alligators on every property in Texas has always been established by the department according to evaluations of habitat and population. Under the amendments and new rule this will not change in those southeast Texas counties designated as core counties. Landowners may, of course, allow whomever they would like to enter and hunt, but are not authorized to exceed the harvest stipulated by the department. No changes were made as a result of the comment.

One commenter opposing adoption stated that by dividing the state into two regulatory zones, the rules would allow unscrupulous persons to go to core counties, shoot an alligator, and then return home claiming to have taken the alligator in a non-core county. The department disagrees with the comment and responds that persons engaging in the described behavior would, of course, be breaking several laws. The department believes that its law enforcement function is sufficient to detect and prevent this type of activity. No changes were made as a result of the comment.

One commenter opposing adoption stated that if the department wants to increase hunting opportunity for alligators, it should offer more hunts on wildlife management areas rather than adopting the proposed amendments and new rule. The department disagrees with the comment and responds that the widespread opportunity to take alligators under a very conservative bag limit is more efficacious. No changes were made as a result of the comment.

One commenter opposing adoption stated that there were only two locations in the entire state that process alligator meat and hides, and that neither of them were open other than during the September 10-30 season in the core counties. Therefore, the commenter stated, meats and hides taken in other counties between April and June would be wasted. The department disagrees with the comment and responds that most if not all outdoorsmen are more than capable of processing their own game. No changes were made as a result of the comment.

The department received four comments supporting adoption of the proposed amendments and new rule.

The Texas Wildlife Association commented is support of adoption of the proposed amendments and new rule.

The department received one comment opposing adoption of the amendment to §65.72 that implements an 18-inch minimum length limit for largemouth bass on Marine Creek Reservoir. The commenter did not offer a specific reason for opposition. No changes were made as a result of the comment. The department received two comments supporting adoption of the proposed amendment.

The department received 235 comments opposing adoption of the amendment to §65.72 that allows the take of certain species of catfish by means of lawful archery equipment. Several of those commenters offered a specific reason or reasons for opposition. Those comments, and the department's responses, follow.

One commenter opposing adoption stated that the rule would make catfish too vulnerable. The department disagrees that a change is necessary on the basis of the comment and responds that anecdotal evidence suggests that there are fewer than 200 persons in the state who would be interested in harvesting catfish by means of archery equipment. Even if the number of persons taking catfish by archery equipment were to increase significantly, due to the distribution of angling effort the department does not believe that the biological impact to catfish populations, on a macro level, will be negative. No changes were made as a result of the comment.

One commenter opposing adoption stated that catfish can be tamed and therefore to take them by means of archery would be unsporting. The department disagrees that a change is necessary on the basis of the comment and responds that there is no research or data indicating that catfish in public waters can be tamed. No changes were made as a result of the comment.

Three commenters opposing adoption stated that the rule will harm catfish populations because the use of archery equipment will increase. The department disagrees that a change is necessary on the basis of the comment and responds that anecdotal evidence suggests that there are fewer than 200 persons in the state who would be interested in harvesting catfish by means of archery equipment. Even if the number of persons taking catfish by archery equipment were to increase significantly, due to the distribution of angling effort the department does not believe that the biological impact to catfish populations, on a macro level, will be negative. No changes were made as a result of the comments.

Five commenters opposing adoption stated that the rule will result in waste, since the use of archery equipment precludes the release of fish. The department disagrees that a change is necessary on the basis of the comment and responds that it is incumbent upon any person who goes fishing to understand and follow the regulations; since catfish are protected by bag and length limits, anglers will have to use judgment and care in deciding which fish to kill. No changes were made as a result of the comments.

Two commenters opposing adoption stated that flathead catfish should be exempt from the applicability of the rule because of their slow growth rate and vulnerability. The department disagrees that a change is necessary on the basis of the comment and responds that anecdotal evidence suggests that there are fewer than 200 persons in the state that would be interested in harvesting any species of catfish by means of archery equipment. Even if the number of persons taking catfish by archery equipment were to increase significantly, due to the distribution of angling effort the department does not believe that the biological impact to catfish populations, on a macro level, will be negative. No changes were made as a result of the comments.

Two commenters opposing adoption stated that the rule would cause the over-harvest of large fish during spawning season. The department disagrees that a change is necessary on the basis of the comment and responds that anecdotal evidence suggests that there are fewer than 200 persons in the state who would be interested in harvesting catfish by means of archery equipment. Even if the number of persons taking catfish by archery equipment were to increase significantly, due to the distribution of angling effort the department does not believe that the biological impact to catfish populations, on a macro level, will be negative. No changes were made as a result of the comments.

Two commenters opposing adoption stated that there is no biological data to suggest that the amendment is warranted, and that the staff recommendation to maintain the status quo should be followed. The department disagrees that a change is necessary on the basis of the comment and responds that department data do not indicate that catfish populations anywhere in the state are in peril under current bag limits, and as noted previously, the overall angler effort with respect to archery equipment, based on the estimated number of persons who use archery equipment, is not expected to exert a significant additive impact on total harvest. No changes were made as a result of the comments.

One commenter opposing adoption stated that the resource should be the main concern, not resource users, particularly a small group of resource users. The department disagrees that a change is necessary on the basis of the comment and responds that Parks and Wildlife Code, §61.055, provides that the commission may amend or revoke rules if there is a danger of depletion or waste, or to provide to the people the most equitable and reasonable privilege to hunt game animals or game birds or catch aquatic animal life. Therefore, absent the threat of depletion or waste to catfish populations, the preferences of user groups of any size may be taken into account by the commission. As noted previously, the overall angler effort with respect to archery equipment, based on the estimated number of persons who use archery equipment, is not expected to exert a significant additive impact on total harvest. No changes were made as a result of the comment.

One commenter opposing adoption stated that allowing the take of catfish by means of archery equipment would create a precedent for allowing other game fish to be taken by means of archery equipment. The department disagrees that a change is necessary on the basis of the comment and responds that the decision to allow the use of archery equipment for the take of catfish is based solely upon the department's determination that the resource is able to withstand the additional harvest pressure resulting from the rule. The implementation of the rule has no other implications. No changes were made as a result of the comment.

One commenter opposing adoption stated that manpower restrictions in the department's law enforcement division mean that size and length limits cannot be enforced at night. The department disagrees that a change is necessary on the basis of the comment and responds that the department's law enforcement effort is sufficient to ensure compliance at any time of the day. No changes were made as a result of the comment.

One commenter opposing adoption stated that the rule will result in increased juvenile delinquency because bowfishing is not for children; thus, children will not go fishing and will be more susceptible to gangs and drugs. The department disagrees that a change is necessary on the basis of the comment and responds that there is no credible data to suggest that angling equipment has any effect on youth crime. No changes were made as a result of the comment.

One commenter opposing adoption stated that the rule will lead to large numbers of fish being killed and left to rot. The department disagrees that a change is necessary on the basis of the comment and responds that it is incumbent upon any person who goes fishing to understand and follow the regulations; since catfish are protected by bag and length limits, anglers will have to use judgment and care in deciding which fish to kill, and to make sure that bag and possession limits are not exceeded. No changes were made as a result of the comment.

The department received 173 comments supporting adoption of the proposed amendment.

Sportsmen Conservationists of Texas and the Coastal Conservation Association commented in opposition to adoption of the proposed amendment.

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

The department received no comments opposing adoption of the amendment to §65.72 that prohibits of the take of sawfish. The department received four comments supporting adoption of the amendment.

The department received no comments opposing adoption of the amendment to §65.72 that discontinues the requirement for the tarpon tag and replaces it with a minimum length limit. The department received four comments supporting adoption of the amendment.

The department received one comment opposing adoption of the proposed amendment to §65.72 that allows one black drum over 52 inches to be taken per day. The commenter stated that the bag limit for black drum should be reduced because of the increasing human population. The department disagrees and responds that the size and bag limits on black drum are based on continuous sampling of fish populations in the bay systems, as well as on data from creel surveys used to estimate recreational take. Also, commercial harvest of black drum is reported through the aquatic products monthly reports. These surveys suggest that black drum populations are healthy, increasing, and maturing. The growth of the human population is not currently impacting black drum populations sufficiently to warrant further restrictions. No changes were made as a result of the comment. The department received four comments in support of adoption.

The department received one comment opposing adoption of the amendment to §65.72 that made tripletail a game fish and imposed size and bag limits. The commenter did not provide a reason for opposition. No changes were made as a result of the comment. The department received five comments supporting adoption of the amendment.

The department received three comments opposing adoption of the amendment to §65.72 that made the possession limit for flounder equal to the daily bag limit.

One commenter opposing adoption stated that the rule should remain unchanged. The department disagrees with the comment and responds that the 10-per-day flounder limit has been in place in Texas since 1996. Fishermen who take trips spanning the midnight hour have been entitled to possess twice the daily bag limit. This could result in greater overall take of fish and greater directed fishing mortality. Additionally, many of the fish taken by recreational anglers have found their way into the commercial market, which is expressly counter to the intent of the rule. No changes were made as a result of the comment.

One commenter opposing adoption stated that the commercial bag limit should be reduced instead of the recreational bag limit. The department disagrees with the comment and responds that the commercial possession limit was reduced in 1997 so that it would be equal to the commercial daily bag limit. The rule as adopted simply imposes the same regulation on recreational anglers. No changes were made as a result of the comment.

Two commenters opposing adoption stated that the department should regulate by-catch instead of recreational take. While the department agrees that the use of trawls in inside waters generates significant bycatch, current rules require trawls to be equipped with bycatch reduction devices. Additionally, total effort in the shrimp fishery is being significantly reduced through the commercial bay and bait shrimp boat license buyback program. Through this program to date, 45% of the 1996 inshore shrimp fleet has been removed from the fishery. No changes were made as a result of the comments.

The department received three comments supporting adoption of the proposed amendment.

The Texas Wildlife Association commented in support of adoption of all rules.