Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

The Texas Parks and Wildlife Department (the department) proposes amendments to §§65.3, 65.9, 65.10, 65.25, 65.34, 65.42, 65.44, 65.64, 65.72, and 65.82, concerning the Statewide Hunting and Fishing Proclamation.

The proposed amendment to §65.3, concerning Definitions, would clarify terminology for the definitions of ‘coastal waters boundary’ and ‘final processing,’ and add definitions of ‘circle hook,’ ‘charter vessel,’ and ‘headboat.’ The current definition of the boundaries of the state's coastal waters in every instance refers to ‘coastal water,’ except for a single reference to ‘saltwater.’ To avoid confusion, the term should be consistent throughout the rule, so the reference to saltwater is being replaced. The current definition of ‘final processing’ does not reflect a statutory provision (Parks and Wildlife Code, §42.001(5)) that applies only to deer and antelope, giving the impression that the current definition applies to all wildlife resources. To prevent confusion, the proposed amendment would add the statutory definition for deer and antelope.

The proposed addition of definitions for ‘circle hook,’ ‘charter vessel,’ and ‘headboat’ defines those terms for the purposes of compliance with and enforcement of the proposed amendment to §65.72 to alter rules affecting the red snapper fishery. The definition of ‘circle hook’ is necessary because the department is proposing elsewhere in this rulemaking to prohibit all hooks other than the circle hook for the take of red snapper. Additionally, the provisions of the proposed amendment to §65.72 would incorporate the federal Individual Fishing Quota (IFQ) rules for the commercial take of red snapper. The IFQ is a form of limited access that assigns a fixed share of the total allowable catch to each user of the resource. The percentage share is based on historical catches in a particular time period. With each landing, poundage from the quota is debited from the individual's IFQ account. The IFQ program is mandated by federal law for all vessels and persons engaged in the commercial harvest of red snapper in federal waters. The incorporation of the federal rules in the Texas Administrative Code would allow the department to prosecute of violations the rules in state jurisdictions. Since the federal IFQ system contains provisions governing vessels (headboats and charter vessels) that simultaneously engage in both commercial and recreational fishing, those terms must be defined in order for the regulated community to ascertain the applicability of the rules to their various activities.

The proposed amendment to §65.3 also would update the reference to the title of the American Fisheries Society publication used to determine fish names. The new title of that publication is "Common and Scientific Names of Fishes from the United States, Canada, and Mexico."

The proposed amendment to §65.9, concerning Open Seasons: General Rules, would eliminate paragraph (d), which by its own terms ceased effect on September 1, 2003 and is thus no longer necessary.

The proposed amendment to §65.10(b) would have the effect of eliminating the ‘double tagging’ requirement for mule deer taken under an antlerless mule deer permit. In previous rulemakings, the department eliminated ‘double tagging’ for white-tailed deer, which was caused by overlapping regulatory requirements that obligated hunters to provide the same information on multiple tags and documents. With the expansion of the managed lands permit program to encompass mule deer, the department inadvertently neglected to provide for the elimination of ‘double tagging’ of mule deer. The proposed amendment is necessary to streamline the tagging process and make it consistent for all deer taken by special permit.

The proposed amendment to §65.10(f) would require a taxidermist to retain a wildlife resource document (WRD) or tag for each deer or turkey in possession for a period of at least two years following the return of the specimen to the owner or, if the owner abandons it, the sale for recovery of the cost of taxidermy. Under Parks and Wildlife Code, §§42.018 and 42.0185, the tagging requirements for deer or turkey allow for the use of a WRD in lieu of a tag under certain circumstances, including when deer and turkey are left with a taxidermist. Under §42.0177, the commission may modify or eliminate those requirements. By statute (Parks and Wildlife Code, §62.023), a taxidermist may sell unclaimed specimens to recover the cost of the taxidermy, and is required to retain the WRD or tag for a period of two years from the date the taxidermy was completed. The two-year time period is the statute of limitations for a Class C misdemeanor. By starting the two-year retention period from the time a specimen is returned to the owner or sold (rather than when the taxidermy is completed), the department will always have the maximum amount of time to conduct an investigation when it is necessary to determine whether deer or turkey taken to a taxidermist have been lawfully taken.

The proposed amendment to §65.25, concerning Wildlife Management Plan (WMP), would alter the provisions of the section applicable to lesser prairie chicken and create additional provisions concerning javelina. With respect to lesser prairie chicken, the proposed amendment to subsection (b) would reduce the number of required management practices from five to three, increase the maximum designated harvest from up to five percent of the estimated lesser prairie chicken population on the property to up to 10 percent of that estimate, and add a requirement for a harvest log to be maintained on the property. The intent of the proposed regulation change is to give field staff more flexibility to encourage landowners to participate in management programs for lesser prairie chicken. The department has determined that most landowners interested in the program are already conducting some or many practices that are beneficial to lesser prairie chicken; therefore, the number of required practices may be reduced. Because of the breeding behavior of lesser prairie chickens and their large home ranges, habitat components for any given population are typically provided by several landowners. For example, nesting and feeding areas may be on one property, while the breeding ground is on another. Variability in property sizes can make management challenging, especially when birds are spending only a small portion of their time on a given habitat component, such as the breeding ground. Increasing the harvest rate will allow field biologists to make issuance of harvest quotas for lesser prairie chicken more equitable for landowners in the program. Harvest at or below 10% of the estimated total population will not result in depletion of the resource, since the post-harvest reproductive potential is more than sufficient to offset or replace harvest mortality. The harvest log requirement is necessary to maintain a record of harvest so the department can determine compliance with harvest quotas. The proposed amendment also would alter subsection (b)(1)(E) by inserting the word ‘quota’ to clarify that the harvest recommendation is in fact a limit.

With respect to javelina, the proposed amendment to §65.25 would add a new subsection (c) to create a mechanism to allow the harvest of javelina by quota on individual properties under a department-approved management plan. Javelina are common across southern and western Texas, but are not uniformly distributed over their natural range. Although department data indicate a possible downward trend across their range, javelina populations are stable or thriving where habitat is good, particularly along drainages where there is abundant vegetation and cover. Thus, in many areas javelina exist in densities sufficient to sustain additional hunting pressure in excess of the current personal bag and possession limits, provided the total harvest does not cause local populations to fall below their immediate recuperative potential. The proposed amendment would allow the department to establish an annual harvest quota for javelina on a given property and the normal bag and possession limits would no longer apply. The department also would require a habitat evaluation, habitat management practices, a harvest log, and population and harvest data for javelina on each property where javelina are to be hunted. By establishing a finite, resource-dependent harvest quota, the department is assured that harvest will not exceed biologically acceptable levels. By collecting valuable biological information on a property-by-property basis, the department will be able to acquire useful biological data concerning javelina populations.

The proposed amendment to §65.34, concerning Managed Lands Deer Permits (MLDP)--Mule Deer, would allow the take of mule deer by MLDP during the archery-only open season. When the MLDP program was expanded to include mule deer, the department inadvertently did not provide for an archery-only open season on properties receiving mule deer MLDPs. Under the MLDP program, a participating property receives a finite harvest quota and a specific time period in which to harvest the specified number of animals. The implementation of an archery season will not be additive to the harvest quota. The amendment is necessary because there is no biological reason not to provide an archery season for mule deer on properties participating in the MLDP program for mule deer.

The proposed amendment to §65.42, concerning Deer, would address several issues. The proposed amendment to subsection (a) would clarify that no person is authorized to exceed a county bag limit except as provided in the section. The proposed amendment to subsection (a)(5) would allow a person to who takes an antlerless mule deer under an antlerless mule deer permit to tag the deer with either a tag from the person's hunting license or the antlerless mule deer permit. The amendment is necessary to prevent hunters from being inconvenienced by "double tagging," having to tag a deer with multiple tags bearing the same information.

The proposed amendment to §65.42(b)(17) and (c)(5) would extend the statewide archery-only season by five days. Historically, the archery season has always closed the Sunday before the opening of the general season. The proposed change would eliminate the current five-day gap between the end of the archery season and the beginning of the general season. The amendment is necessary to follow the commission's policy of providing the maximum hunting opportunity possible.

The proposed amendment to §65.42(b)(5)-(9) would clarify the rules concerning the take of buck deer in counties where antler restrictions are in effect. In those counties, a lawful buck is defined as a buck that has an inside antler spread of 13 inches or greater or a buck that has at least one unbranched antler. A hunter may take two bucks, but only one of them may have an inside antler spread of 13 inches or greater. The amendment is necessary because the current rule does not provide for the instance in which a hunter kills a spike-buck deer with an inside spread of greater than 13 inches. The proposed amendment would make it clear that the antler spread of a buck with an unbranched antler is irrelevant.

The proposed amendment to §65.42(b)(5)(13)(D) would clarify that antlerless deer may be taken in without a permit anywhere Grayson County during the ‘doe days’ in effect in the county.

The proposed amendment to §65.44, concerning Javelina: Open Seasons and Annual Bag limits, would insert clarifying language to prevent conflicts with the proposed amendment to §65.25.

The proposed amendment to §65.64, concerning Turkey, would alter subsection (b)(3) to change the spring season dates for Rio Grande turkey. In 2005, the department lengthened the season and created a uniform opening day in all counties. In analyzing the results of that change, the department has determined that additional hunting opportunity can be provided without resulting in depletion or waste of the resource. The proposed amendment would start the season approximately two weeks earlier (the Saturday closest to March 18) in counties in the southern Edwards Plateau and South Texas, and one week later in those counties in the northern Edwards Plateau, north Texas, and the Rolling Plains. The proposed amendment would allow hunters to take advantage of peak gobbling activity, which often varies annually depending on weather conditions. Since the spring Rio Grande hunting season is limited to only male birds (gobblers) there is little harm to turkey production, unless hunting activities disrupt the breeding behavior of the turkeys. Varying the opening date will allow hunters to be in the field when peak gobbling occurs. The amendment is necessary in order to follow the commission's policy of providing the maximum opportunity possible within the tenets of sound biological management. In selecting the counties where the season would open in March, the department included three counties (Guadalupe, DeWitt, and Victoria) where the bag limit is currently one gobbler during the spring season. In 1996, the department reduced the spring season bag limit in those counties due to population concerns. The department has determined that the populations in those counties are able to withstand additional harvest.

The proposed amendment also would extend the statewide archery-only season for turkey by five days, for the same reasons discussed for the extension of the archery season for deer.

The proposed amendment to §65.72, concerning Fish, consists of a number of actions. The proposed amendment would alter subsection (a) to exempt persons engaged in offshore aquaculture from the size and bag limits established for the recreational fishery. The action is necessary to clarify that fish being reared in lawful aquaculture facilities would be allowed to be possessed and landed without violating the recreational limits for those species. Current regulations would not allow the possession of cultured species in excess of bag or length limits.

The proposed amendment to §65.72(a) also would allow the use of catfish heads as bait in crab traps by commercial crab fishermen, provided the catfish were obtained from a permitted aquaculturist in the United States. The purpose of the prohibition of the use of game fish for bait is to prevent the use of undersized game fish as bait. However, catfish heads are good bait for crab traps, and aquaculture facilities typically have no use for catfish heads following harvest. By restricting the use of catfish to heads only and requiring crab fisherman who do use them to be able to document their origin, the department believes protection for game species will not be affected.

The proposed amendment to §65.72(a) also would prohibit the use of any vessel to harass or harry fish. The current rule prohibits the use of airboats or jet-driven devices to harass or harry fish. At the time the current rule was adopted, only certain types of vessels were capable of traversing water shallow enough to allow the herding of fish; however, newer hull and engine designs allow many vessels to access very shallow water and occurrences of this kind of activity are growing. Fish that are artificially concentrated into small areas are more susceptible to anglers than those that are not concentrated, despite otherwise effective restrictions. Under Parks and Wildlife Code, §61.002, the purpose of the chapter is to provide a comprehensive method for the conservation of an ample supply of wildlife resources on a statewide basis to insure reasonable and equitable enjoyment of the privileges of ownership and pursuit of wildlife resources. Harrying fish with vessels is considered an artificial method of concentration that deprives other anglers of the opportunity for equitable enjoyment of the resource.

The proposed amendment to §65.72(a) also would incorporate federal regulations governing the Individual Fishing Quota program in state regulations. Federal rules require a federal permit for the harvest of Gulf of Mexico Reef Fish and a federal red snapper Individual Fishing Quota (IFQ) vessel endorsement. This change is necessary to allow enforcement of these requirements in state as well as federal court and to insure that fish landed in Texas are not in contravention of federal limits.

The proposed amendment to §65.72 would alter the provisions of subsection (b)(2)(C) to increase the size limit for sheepshead from 12 inches to 15 inches over a three-year period. The current size limit was implemented 15 years ago and was selected to maintain consistency with other, similar size limits. Recent biological research suggests that the 15-inch limit would provide better protection for sheepshead, allowing a higher percentage of fish to reach sexual maturity and age by the time of first spawn. Since the growth rate of sheepshead is relatively slow, increasing the size limit by one inch per year balances greater protection via size limits against the impacts of size limits on recreational landings. Increasing the size limit by one inch per year over the next three years will achieve the protection needed and minimize the impact to recreational landings. The proposed amendment is necessary to ensure a plentiful supply of this popular sport fish.

The proposed amendment to §65.72(b)(2)(C) also would change the size limit for red snapper from 15 to 13 inches for all anglers. This change is being considered to be consistent with federal regulations that apply to fish legally caught in the Exclusive Economic Zone of the Gulf of Mexico and then landed in Texas. Also, anyone fishing for red snapper will be required to use circle hooks. The restriction is intended to reduce hooking mortality in undersized fish.

The proposed amendment to §65.72(b)(2)(C) also would implement a catch-and-release fishery for tarpon. Under current rules there is a bag limit of one tarpon of 80 inches or longer per person per year. Tarpon become reproductively mature at around 10 years of age (approximately 4 feet in length), which is extremely old for most fish species. Also, while individual females are relative fecund, the survival rate of young is poor compared to other species of saltwater fish because its unusual life history involves multiple larval stages, all susceptible to predation. Individuals, record-keeping trophy groups, and even some fishing tournaments have moved towards systems that rely on measurements of fish (length and/or girth) to determine the weight of the fish. The fish are released immediately after measurement. The proposed amendment will create a similar catch and release fishery for tarpon in Texas and reduce the need for even the very limited harvest now allowed.

The proposed amendment to §65.72(b)(2)(D) would increase the possession limit for striped bass on Lake Texoma from 10 to 20. The proposed change would reduce angler confusion with respect to fish landed in Texas and would create a more standardized regulation with Oklahoma, without resulting in any negative impacts on the resource or the angling community. The current possession limit on Lake Texoma (10 fish) is identical to the daily bag limit, which differs from the statewide regulations that generally establish the possession limit as twice the daily bag limit. The Oklahoma possession limit is 20 fish, with special exceptions.

The proposed amendment to §65.72(b)(2)(D) also would regionalize spotted seatrout regulations by reducing bag and possession limits for spotted seatrout in the lower Laguna Madre (LLM). The proposed amendment would lower the daily bag limit in the LLM from 10 to 5, and the possession limit would be the same as the daily bag limit. Surveys and modeling have suggested a relatively long downward trend in overall abundance of spotted seatrout and a decrease in the spawning stock biomass in the LLM. Population size in this bay system is at or slightly below those found elsewhere along the coast, but it is significantly lower than in the recent past. Based on bag seine sampling in the LLM there appears to be constant recruitment into the LLM fishery. Gill-net sampling by the department indicates that while the same or even slightly greater abundance of fish are reaching the size classes that are susceptible to sampling with the gill nets (based on gear selectivity), a smaller proportion of those fish are reaching the larger size classes as compared to previous time periods. These larger size classes of fish are being harvested out of the system and this is believed to be impacting the reproductive potential of the population. Modeling has indicated a substantial improvement would be possible in a relatively short period of time if these trends were to be addressed now. This proposal is necessary to stop and reverse current total abundance and spawning biomass trends in the LLM. The proposed amendment also would insert a statement in §65.72(b)(2)(C) to clarify that the provisions of subparagraph (D) of that paragraph are exceptions to the provisions of subparagraph (C).

The proposed amendment also would extend for one year the provision allowing the harvest of catfish by means of lawful archery equipment and crossbow. The proposed amendment is necessary because the department is still in the process of evaluating the impact of the regulation on catfish populations.

The proposed amendment to §65.82 would preclude taking or retaining diamondback terrapin, except by persons holding commercial nongame, scientific, educational, or zoological permits. The impact of direct or incidental take and accidental mortality on diamondback terrapins is a concern, and research indicates that the species is in a declining population trend across much of its range. The take by special permit only will allow the department to monitor trends affecting the population and take additional action in the future if warranted.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be the dispensation of the agency's statutory duty to protect and conserve the wildlife resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission's policy to maximize recreational opportunity within the precepts of sound biological management practices.

There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed, except as noted. The economic impact of hunting and fishing in Texas, particularly in rural areas of the state, is significant. The Survey of Fishing, Hunting, and Wildlife-related Recreation, conducted annually since 1955 by the U.S. Fish and Wildlife Service, estimates that approximately $3.5 billion was spent by hunters and anglers in Texas in 2001, the last year for which survey data is available. Of that total, nearly $1.5 billion was spent on food, lodging, transportation, and fuel; $1.3 billion was spent on equipment; and $366 million was spent on licenses, permits, and fees paid to landowners for hunting rights. From these data it is readily apparent that hunting and fishing represent a significant economic impact to many individuals and types of businesses in the state.

Typically, the department's annual changes to the regulations governing recreational fish and wildlife use are characterized by minor alterations, usually affecting bag limits, bag composition, season lengths, or provisions affecting licenses or permits. In assessing the effect of the proposed amendments on small businesses, microbusinesses, and persons required to comply, the department has made the assumption that the majority of economic influence exerted by fish and wildlife regulations is a function of the presence or absence of opportunity, which is directly tied to the biological parameters (availability, viability, surplus, etc.) that determine whether or not the commission is able to provide an open season under the requirements of Parks and Wildlife Code, Chapter 61.

In order to assess these impacts, the department compared the results of the 2001 Fish and Wildlife Service survey with previous survey results. A comparison employing a 90 percent confidence interval around survey estimates from 1991 to 2001 reveals that economic activity (in adjusted dollars) surrounding hunting and angling has remained statistically stable during that time, the notable exception being an approximately 46% increase in travel expenses related to hunting. This comparison, when viewed against the backdrop of continual but slight changes to regulations, would seem to indicate that minor fluctuations in the regulations do not, in and of themselves, result in significant economic impacts to any type of business. While this comparison indicates little or no change at the macro (statewide level) there could be changes at the micro (local) level, as addressed elsewhere in this preamble.

However, there are four proposed amendments that warrant clarification: the requirement of the use of circle hooks when taking red snapper by pole and line, the implementation of the federal regulations governing the Individual Fishing Quota (IFQ), the reduction in the minimum size limit for red snapper, and the reduction in bag and possession limits for spotted seatrout in the lower Laguna Madre.

The proposed amendment to §65.72(b)(2)(c) would require pole-and-line anglers to use circle hooks when fishing for red snapper. It must be noted that this is a cost routinely borne by the angler when replacing old, worn, or damaged tackle. Although there are fishermen who currently do not use circle hooks who will have to purchase them to comply with the proposed amendment, the expense is expected to be between $.17 and $1 per hook, depending on the quality and quantity purchased.

The proposed amendment to §65.62(b) would require commercial fishermen to comply with federal IFQ requirements when landing red snapper in Texas. Under existing federal law, a commercial fisherman may not land red snapper in Texas unless that person is in compliance with the federal IFQ requirements. The proposed amendment does not impose additional regulatory requirements or costs on the regulated community. The federal regulations are being incorporated into the Texas Administrative Code to allow the department to prosecute violations in state jurisdictions.

The proposed amendment to §65.72(b)(2) would decrease the minimum size limit for red snapper from 15 inches to 13 inches for both recreational and commercial fisherman. The department believes that the change, if adopted, will actually make a greater number of fish available for both recreational and commercial harvest. The reduction in length is intended to reduce the waste of fish that are released and do not survive. With respect to impact upon the commercial fishery, the new size limit is anticipated to benefit the overall biomass in the fishery and benefit the rebuilding of the stock. The National Marine Fisheries Service assessment of the stock indicates that the reduction will not create the same benefits to the overall population for the recreational fishery. However, by reducing the size limits simultaneously there will be fewer conflicts between the recreational and commercial fishery. In addition, through the use of circle hooks and angler education, the benefits of the 13-inch minimum size limit on the recreational sector may be greater than anticipated.

The proposed amendment to §65.72(b) would reduce the bag limit on spotted seatrout in the lower Laguna Madre (LLM) from 10 fish to 5 fish and would make the possession limit identical to the bag limit. The amendment, if adopted, might influence an angler's choice of fishing location or the number of times an angler fishes in a particular location. Anglers who traditionally fish the LLM might decide to take fewer trips to the LLM, fish in other bay systems, fish in fresh water, or possibly curtail all fishing activities over the next five years. While this type of behavior shift does not have a direct cost of compliance to the angler it does equate to a change in the expected value (satisfaction) that the individual angler received from their fishing experiences. The impact of changing fishing behavior or the shifting of fishing pressure could have an economic impact on fishing guides, bait dealers, tackle businesses, hotels, restaurants and other small businesses directly associated with angler tourism in the local area of the LLM; however, this secondary impact is not a direct cost of compliance and will depend on the number of anglers that choose to alter or shift their current fishing behavior.

The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies. The proposed amendment to §65.72(b) that would reduce the bag limit for spotted seatrout may have an indirect impact on the local economies surrounding the lower Laguna Madre, but as explained earlier in this preamble, these effects, if they occur, would be secondary impacts of the rulemaking, chiefly in the form of individual decisions by anglers to increase, decrease, or maintain their levels of angling activities based on the perception of the rule's effect on angling satisfaction. The rule in and of itself imposes no direct effects on 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 by phone (area code 512) or e-mail to Robert Macdonald (Wildlife 389-4775; e-mail: robert.macdonald@tpwd.state.tx.us), Ken Kurzawski (Inland Fisheries 389-4591; e-mail: ken.kurzawski@tpwd.state.tx.us), Jerry Cooke (Coastal Fisheries 389-4492; e-mail: jerry.cooke@tpwd.state.tx.us), David Sinclair (Wildlife Enforcement 389-4854; e-mail: david.sinclair@tpwd.state.tx.us), or Bill Robinson (Fisheries Enforcement 389-4628; e-mail: bill.robinson@tpwd.state.tx.us), Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775 or 1-800-792-1112.