Commission Agenda Item No. 3
Exhibit A

STATEWIDE HUNTING PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (the department, or TPWD) proposes the repeal of §65.30, amendments to §65.3, 65.34, and 65.40, and new §65.30, concerning the Statewide Hunting Proclamation.

         The proposed repeal of §65.30, concerning Pronghorn Antelope Permit, is necessary to propose new §65.30.

         The proposed amendment to §65.3, concerning Definitions, would remove the definition of “agent” and add a definition of “landowner.” Under current rule, the term “agent” is defined as “a person authorized to act on behalf of the landowner, “but, the term “landowner” is not defined. The proposed amendment would define the term “landowner” as “any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent.”  The intent of the proposed amendment is to make clear to whom the terms “landowner” and “agent” refer for purposes of compliance and enforcement.

         Proposed new §65.30, concerning Pronghorn Antelope Permit, would set forth the method the department utilizes to determine and allot the harvest of pronghorn antelope and the places and conditions under which permits issued under the section are valid. Under Parks and Wildlife Code, §61.057, no person may hunt an antelope without first having acquired an antelope permit issued by the department. Under Parks and Wildlife Code, §61.051, the department is required to conduct scientific studies and investigations of game animals to determine, among other things, supply, sex ratios, and the effects of any factors or conditions causing increases or decreases in supply. Under Parks and Wildlife Code, §61.052, the commission is required to regulate the means, methods, places, and periods of time when it is lawful to hunt or possess game animals. In general, the proposed new section preserves the contents of current §65.30 and makes conforming changes necessary to accommodate the proposed amendment to §65.40, which would allow hunting of buck pronghorn antelope in certain places by means of a permit obtained directly from the department rather than from a landowner.

         The proposed amendment to §65.34, concerning Managed Lands Deer Permits (MLDPs)—Mule Deer, would extend the period of validity of MLDPs for mule deer to the last Sunday in January. The MLDP permit program was expanded to include mule deer in 2005. Unlike the MLDP program for white-tailed deer, which allows hunting from October until February, the mule deer MLDP permit validity was conservatively established to run concurrently with the season for white-tailed deer (the first Sunday in November to the first Sunday in January).  Since its inauguration, the program has steadily grown. The number of cooperators has increased by nearly 350% and the acreage under management has nearly tripled. In recent years, the department has been approached by landowners and land managers with the idea of extending the period of validity. The department conducted a significant outreach effort over the past year and has determined that there is support for an extension of the mule deer MLDP period of validity.

         The proposed amendment to §65.40 would implement an experimental season for the take of buck pronghorn antelope in certain areas of the state. Under Parks and Wildlife Code, §61.057, no person may hunt an antelope without first having acquired an antelope permit issued by the department. Under Parks and Wildlife Code, §61.051, the department is required to conduct scientific studies and investigations of game animals to determine, among other things, supply, sex ratios, and the effects of any factors or conditions causing increases or decreases in supply. Under Parks and Wildlife Code, §61.052, the commission is required to regulate the means, methods, places, and periods of time when it is lawful to hunt or possess game animals. Under current rule, the take of all pronghorn antelope is by permit only. The department manages pronghorn antelope populations by the concept of the “herd unit.” A herd unit is an area containing similar pronghorn densities (during the timeframe of population surveys) and habitats.  Some herd units are bounded by natural or man-made barriers that prevent or inhibit immigration/emigration.  Other herd units are bounded by man-made infrastructure that facilitates a descriptive boundary but does allow immigration/emigration.  The department conducts population surveys and collects harvest data annually to determine the percentage of each herd unit that may be harvested each year without causing depletion or waste. Permits are then issued to landowners, who distribute them to hunters at their discretion. Over the last 10-15 years, pronghorn antelope populations in portions of the northern Panhandle have increased steadily and continue to expand their range.  As a result, permit demand has increased and staff time accommodating that demand has increased accordingly. The proposed amendment would implement an experimental season in three herd units where staff believe that buck populations can sustain additional hunting pressure. The current bag limit and season length would be retained; however, no permits for buck pronghorn antelope would be issued to the landowners. Instead, the harvest of buck pronghorn antelope would be at the discretion of the landowner. In order to measure the impact of the experiment and to assist law enforcement personnel in identifying lawfully taken pronghorn antelope, the proposed amendment would require hunters to obtain a permit from the department and attach it to harvested bucks and present each harvested buck at a check station, if the department establishes check stations. The proposed amendment is intended to reduce the amount of time spent on permit issuance by staff, increase hunter opportunity, and provide greater convenience for landowners, hunters, and outfitters.

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2. Fiscal Note.

         Mr. Clayton Wolf, Wildlife Division Director, 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.

3. Public Benefit/Cost Note.

         Mr. Wolf also has determined that for each of the first five years the rules as proposed are in effect:

         (A) 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.

         (B) There will be no adverse economic effect on persons required to comply with the rule as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that the proposed rule will not directly affect small businesses or micro-businesses.  The proposed amendments affect the regulation of recreational license privileges that allow individual persons to pursue and harvest mule deer and pronghorn antelope. The proposed amendments would not directly regulate any business and would not impose recordkeeping or reporting requirements; impose taxes or fees; affect sales, profits, or market competition; or require the purchase or modification of equipment or services by small businesses or microbusinesses. Therefore, the department therefore has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

         (D) 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.

         (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted by phone or e-mail to Robert Macdonald (512) 389-4775; e-mail: robert.macdonald@tpwd.state.tx.us, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744. Comments also may be submitted via the department’s website at http://www.tpwd.state.tx.us/business/feedback/public_comment/.

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 42, which allows the department to issue tags for animals during each year or season; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

         The proposed amendment affects Parks and Wildlife Code, Chapters 42 and 61.

6. Text.

         §65.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this chapter shall have the meanings assigned in the Texas Parks and Wildlife Code.

                 [(1) Agent — A person authorized by a landowner to act on behalf of the landowner. For the purposes of this chapter, the use of the term "landowner" also includes the landowner’s agent.]

                 (1)[(2)] Alligator gig — A pole or staff equipped with at least one of the following:

                         (A) immovable prongs;

                         (B) two or more spring-loaded grasping arms; or

                         (C) a detachable head.

                 (2)[(3)] Alligator hide tag (hide tag) — A department-issued tag required by federal law pursuant to the Convention on International Trade in Endangered Species (CITES) to be affixed to all alligators taken in the state. All alligator hide tags issued by the department are CITES tags.

                 (3)[(4)] Annual bag limit — The quantity of a species of a wildlife resource that may be taken from September 1 of one year to August 31 of the following year.

                 (4)[(5)] Antlerless deer — A deer having no hardened antler protruding through the skin.

                 (5)[(6)] Antler point — A projection that extends at least one inch from the edge of a main beam or another tine. The tip of a main beam is also a point.

                 (6)[(7)] Bait — Something used to lure any wildlife resource.

                 (7)[(8)] Baited area — Any area where minerals, vegetative material or any other food substances are placed so as to lure a wildlife resource to, on, or over that area.

                 (8)[(9)] Bearded hen — A female turkey possessing a clearly visible beard protruding through the feathers of the breast.

                 (9)[(10)]  Buck deer — A deer having a hardened antler protruding through the skin.

                 (10)[(11)] Daily bag limit — The quantity of a species of a wildlife resource that may be lawfully taken in one day.

                 (11)[(12)]  Day — A 24-hour period of time that begins at midnight and ends at midnight.

                 (12)[(13)]  Deer population data — Results derived from deer population surveys and/or from systematic data analysis of density or herd health indicators, such as browse surveys or other scientifically acceptable data, that function as direct or indirect indicators of population density.

                 (13)[(14)]  Final processing — The cleaning of a dead wildlife resource for cooking or storage purposes. For a deer or antelope carcass, the term includes the processing of the animal more than by quartering.

                 (14)[(15)]  Fully automatic firearm — Any firearm that is capable of firing more than one cartridge in succession by a single function of the trigger.

                 (15)[(16)]  Gig — Any hand-held shaft with single or multiple points.

                 (16) Landowner—Any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent.

                 (17) Lawful archery equipment — Longbow, recurved bow, and compound bow.

                 (18) License year — The period of time for which an annual hunting license is valid.

                 (19) Muzzleloader — Any firearm that is loaded only through the muzzle.

                 (20) Permanent residence — One’s domicile. This does not include a temporary abode or dwelling such as a hunting/fishing club, or any club house, cabin, tent, or trailer house used as a hunting/fishing club, or any hotel, motel, or rooming house used during a hunting, fishing, pleasure, or business trip.

                 (21) Possession limit — The maximum number of a wildlife resource that may be lawfully possessed at one time.

                 (22) Silencer or sound-suppressing device — Any device that reduces the normal noise level created when the firearm is discharged or fired.

                 (23) Spike-buck deer — A buck deer with no antler having more than one point.

                 (24) Unbranched antler — An antler having no more than one antler point.

                 (25) Upper-limb disability — A permanent loss of the use of fingers, hand or arm in a manner that renders a person incapable of using a longbow, compound bow or recurved bow.

                 (26) Wildlife resources — Alligators, all game animals, and all game birds.

                 (27) Wounded deer — A deer leaving a blood trail.

         §65.30. Pronghorn Antelope Permit.

                 (a) In all areas of the state other than those designated in §65.40(d) of this title (relating to Pronghorn Antelope: Open Seasons and Bag Limits), the department shall determine the number of pronghorn antelope to be harvested from a given tract of land and shall issue permits to the landowner, who may distribute the permits to hunters. A permit issued under this subsection is valid only on the tract of land for which it was issued.

                 (b) In the areas designated in §65.40(d), no person may hunt a doe pronghorn antelope without landowner-issued permit; however,  a person may hunt buck pronghorn antelope without a landowner-issued permit, provided:

                         (1) permission of the landowner to hunt buck pronghorn antelope has been obtained; and

                         (2) the person has obtained a buck pronghorn antelope permit from the department or an authorized agent of the department.

                 (c) For the purposes of this section, ’tract of land’ is a parcel or parcels of land under the same ownership within a single herd unit.

         §65.34. Managed Lands Deer Permits (MLDPs)—Mule Deer,

                 (a) MLDPs for mule deer may be issued only to a landowner who has a current wildlife management plan (WMP) in accordance with subsection (b) of this section that specifies a harvest quota for buck and/or antlerless mule deer. A WMP is not valid unless it is:

                         (1) consistent with Parks and Wildlife Code, §61.053 and §61.056; and

                         (2) signed by a Wildlife Division biologist or technician authorized to write wildlife management plans. A WMP is valid for one year following the date of such signature.

                 (b) MLDP issuance for mule deer shall be determined by the WMP as follows. MLDPs shall be issued to a landowner whose WMP includes:

                         (1) deer population data for both the current year and the two immediately preceding years;

                         (2) deer harvest data from the immediately preceding two years; and

                         (3) at least three recommended habitat improvements.

                 (c) An MLDP issued under this section permits the take of antlerless and/or buck mule deer, as specified on the permit. An MLDP issued under this section is valid:

                         (1) only on the property for which it is issued (as described in the WMP);

                         (2) during the archery-only open season established by §65.42 of this title (relating to Deer); however, the lawful means of take is restricted to lawful archery equipment only; and

                         (3) from the first Saturday in November through the last[first] Sunday in January, during which time any lawful means may be used.

                 (d) There is no bag limit for antlerless deer on properties for which antlerless permits have been issued.

                 (e) There is no bag limit for buck deer on properties for which buck permits have been issued.

                 (f) If MLDP antlerless permits have been issued for a property, each antlerless deer harvested on the property must be immediately tagged with a valid MLDP antlerless permit. If MLDP buck permits have been issued for a property, each buck deer harvested on the property must be immediately tagged with a valid MLDP buck permit. If an appropriate MLDP is not attached immediately at the time of kill, the person who killed the deer shall immediately take the carcass to a location on the property where an appropriate MLDP shall be attached.

                 (g) If a landowner in possession of MLDPs does not wish to abide by the harvest quota or habitat management practices specified by the WMP, the landowner must return all MLDPs to the department no later than one day prior to the date that the permits are valid under subsection (c) of this section.

                 (h) In the event that unforeseeable developments such as floods, droughts, or other natural disasters make the attainment of recommended habitat management practices or harvest goals impractical or impossible, the department may, on a case-by-case basis, waive the requirements of this section.

                 (i) The department reserves the right to deny further issuance of MLDPs to a landowner who exceeds the harvest quota specified by the WMP or who does not otherwise abide by the WMP. A property for which the department denies further permit issuance under this subsection is ineligible to receive MLDPs for a period of three years from the date of denial.

                 (j) MLDP requests received by the department before August 15 of each year shall be approved or denied by November 1 of the same year.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on

         The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed, and §42.0177, which authorizes the commission to modify or eliminate the tagging requirements of §§42.018, 42.0185, or 42.020, or other similar tagging requirements in Chapter 42.

         The proposed amendment affects Parks and Wildlife Code, Chapters 42 and 61.

         §65.40. Pronghorn Antelope: Open Seasons and Bag Limits.

                 (a) In all counties there is a general open season for pronghorn antelope for nine consecutive days beginning the Saturday nearest October 1, and the annual bag limit is one pronghorn antelope[, by permit only].

                 (b) A person who kills a pronghorn antelope shall immediately and legibly complete and attach a pronghorn antelope permit to the carcass, which shall remain attached until the carcass reaches a final destination.

                 (c) In any area of this state that is not within an area described in subsection (d) of this section, a person who hunts pronghorn antelope shall acquire the pronghorn antelope permit from the landowner of the property on which the hunting activity occurs.

                 (d) Within the boundaries of an area described in this section, no landowner-issued permit is required to hunt buck pronghorn antelope; however, no person may hunt a buck pronghorn antelope unless that person has obtained a buck pronghorn antelope permit from the department.

                                  (1) Area  1. That portion of the state north of a line beginning at the intersection of U.S. Highway (U.S.) 87 and Farm to Market Road (F.M.) 281 in Hartley County; thence east along F.M. 281 to U.S. 287 in Moore County; thence north along U.S. 287 to F.M. 2014 in Sherman County; thence southwest along F.M. 2014 to South Cedar Street in the City of Stratford in Sherman County; thence northwest along South Cedar Street to U.S. 54 in Sherman County; thence southwest along U.S. 54 to Elks Road in the City of Dalhart in Dallam County; thence south along Elks Road to Ranch Road (R.R.) 297 in Dalhart, Dallam County; thence east along R. R. 297 to Rawlings Road/Robertson Road; thence south on Rawlings Road/Robertson Road to U.S. 87 in Hartley County; thence south along U.S. 87 to F.M. 281 in Hartley County.

                                  (2) Area 2. That portion of the state south of a line beginning at the intersection of  U.S. 87 and U.S. 385 in Hartley County; thence east along U.S. 87 to S. Twichell Ave. in the City of Dumas in Moore County; thence south along S. Twichell Ave. to W. 16th St.; thence eastward along W. 16th Str. to the first unnamed dirt road; thence south and then east along the unnamed dirt road to S. Dumas Ave./U.S. 87/287; thence south along S. Dumas Ave./U.S. 87/287 to State Highway (S.H.) 354; thence west along S.H. 354 to Alabama Ave. in the City of Channing in Hartley County, thence north along Alabama Ave. to E. 4th St.; thence west along E. 4th St. to U.S. 385; thence north along U.S. 385 to the intersection of U.S. 385 and U.S. 87.

                                  (3) Area 3. That portion of the state north of a line beginning at the intersection of  U.S. 70 and S.H. 171 in Gray County; thence southeast along S.H.  171 to U.S. 60 in Gray County; thence northeast along U.S. 60 to F.M. 282 in Roberts County; thence west along F.M. 282 to F.M. 283 in Roberts County; thence northwest along F.M. 283 to U.S. 70 in Roberts County; thence south along U.S. 70 in Roberts County to S.H. 171 in Gray County.

                 (e) The department may establish mandatory check stations in the areas described by subsection (d) of this subsection. If check stations have been established, a person who kills a buck pronghorn antelope or the person’s representative must present the entire, intact head at a check station within 24 hours of take.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on

         The repeal is proposed under the authority of Parks and Wildlife Code, Chapter 42, which allows the department to issue tags for animals during each year or season; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

         The proposed repeal affects Parks and Wildlife Code, Chapters 42 and 61.

         §65.30. Pronghorn Antelope Permit.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on