Commission Agenda Item No. 4
Exhibit A

2014-2015 STATEWIDE HUNTING PROCLAMATION

PROPOSAL PREAMBLE

1.  Introduction.

         The Texas Parks and Wildlife Department (the department, or TPWD) proposes amendments to §§65.8, 65.10, 65.11, 65.32, 65.42, 65.46, 65.48, and 65.64, concerning the Statewide Hunting Proclamation.

         The proposed amendment to §65.8, concerning Alternative Licensing System, would clarify that  the tagging requirements of Parks and Wildlife Code with respect to white-tailed deer, mule deer, or turkey apply to lifetime hunting licenses and lifetime resident super combination hunting and "all water" fishing packages. Lifetime licenses are sold without tags; the holder of the license is supplied with tags by the department on an annual basis. The current rule was promulgated in 2002 as part of a contingency plan to in the event the department’s automated point-of-sale license system became inoperable, and was not intended to relieve lifetime license holders of the requirement to obtain or use tags when otherwise legally required to do so.

         The proposed amendment to §65.10, concerning Possession of Wildlife Resources, would eliminate current subsection (l)(2)(C), regarding possession of desert bighorn sheep skull/horns from rams that are found in the wild. Under current rule, a person who wishes to possess the skull/horns of a desert bighorn ram found dead in the wild may do so, provided the person did not cause or participate in the death of the ram, has notified the department within 48 hours of discovering the ram and arranged to have the skull marked with an identification plug, and acquires an affidavit from the landowner attesting to the place and date that the person discovered the ram.  The affidavit requirement was promulgated in 2003 during the early stages of the department’s efforts to restore desert bighorn sheep and was intended to document desert bighorn sheep mortality for purposes of analyzing population status. Because the restoration effort has been quite successful, staff has determined that the affidavit requirement is no longer necessary.  The other requirements for possession of desert bighorn sheep skull/horns from rams that are found in the wild would still need to be satisfied.

         The proposed amendment to §65.11, concerning Lawful Means, would eliminate the current provision that prohibits the possession of firearms while hunting deer or turkey during an open archery season.  The proposed amendment would also make air guns meeting certain specifications lawful for the take of squirrel.

         Under current rule, it is an offense for any person to be in possession of a firearm while hunting deer or turkey with a broadhead hunting point during an archery-only season. The purpose of the rule is to prevent unscrupulous persons from using firearms during archery-only seasons. By policy, the department has historically allowed persons licensed to carry a concealed handgun under the provisions of Government Code, Chapter 411, Subchapter H, to be in possession of a handgun while hunting during an archery season. The department has determined that rather than have a confusing regulation that allows firearms to be possessed during archery seasons in some circumstances, but not in others, it is prudent to allow any person to possess a firearm while hunting during archery seasons; however, the use of a firearm to take turkey or deer during an archery season would still be prohibited.

         The proposed amendment to §65.11 also would create new paragraph (4) to allow the use of air rifles to hunt squirrel. The department received a petition for rulemaking earlier this year requesting that air rifles be designated a lawful means for the take of squirrel. The department has determined that modern air rifles have achieved ballistic performance characteristics that approximate those of rimfire ammunition at close ranges and are capable of humanely killing squirrels at such distances. Therefore, the proposed new paragraph would allow the use of air rifles to take squirrel, provided the rifle is designed to be fired from the shoulder, the projectile size is a minimum of .177 caliber (4.5mm), and the projectile is delivered by means of the force of a spring, air, or non-ignited compressed gas at a muzzle velocity of no less than 600 feet per second. The department selected the minimum projectile size and muzzle velocity on the basis of creating a reasonable likelihood of instant lethality.

         The proposed amendment to §65.32, concerning Antlerless Mule Deer, would clarify the utilization of antlerless mule deer permits. The antlerless mule deer permit is available to landowners and land managers who do not wish to participate in the department’s managed lands program (see, 31 TAC §65.34) but who wish to harvest surplus antlerless mule deer. The department reasons that because by current rule the harvest of antlerless mule deer on any property is by permit only, there is no biological reason to restrict either the take of multiple antlerless mule deer by a single hunter or the season in which the harvest occurs (i.e., archery season or general season), so long as the hunter is in compliance with the permit requirements. The proposed amendment would allow antlerless mule deer permits to be used during any open season for mule deer without respect to bag limits; however, permit utilization during an archery-open season would still be required to be by means of lawful archery equipment or crossbow.

         The proposed amendment to §65.42, concerning Deer, would eliminate the list of counties in subsection (b)(15) and replace it with language to the effect that in all counties not specifically designated as having an open season, there is no open season. By implementing a generic statement the department eliminates the need to modify the list by rule as seasons are implemented or closed.

         The proposed amendment to §65.42 also would amend subsection (c) to open an archery-only special season and 16-day general open season for mule deer in Knox County and a 9-day general open season for mule deer in Castro, Hale, Lubbock and Lynn counties. The majority of the landscape utilization in the affected counties is large-scale farming and grazing operations, but survey data indicate the existence of mule deer populations that can sustain hunting pressure in those areas where suitable mule deer habitat exists.  The literature suggests that the implementation of a buck-only season will have no measurable impact on herd productivity or expansion; however, a measurable change in the age structure of the buck segment of the population is possible if there is intense harvest pressure. If adopted, the new seasons would create increased hunter opportunity with no measurable effect on reproduction or distribution of mule deer populations in these counties. The proposed archery/16-day general season in Knox County was selected to be consistent with surrounding counties that have similar habitat, land use, and population dynamics. The proposed season for Castro, Hale, Lubbock, and Lynn counties was chosen for the same reason.

         The proposed amendment to §65.46, concerning Squirrel: Open Seasons, Bag, and Possession Limits, would eliminate the bag limit in the counties listed in subsection (a), which would give those counties a year-round season with no bag limit. The proposed amendment also would lengthen the squirrel season for the counties listed in subsection (b) by extending the winter segment of the season for approximately three weeks, to the last Sunday in February. The proposed amendment is intended to increase hunter opportunity and no negative biological impacts are anticipated.

         The proposed amendment to §65.48, Desert Bighorn Sheep: Open Season and Annual Bag Limit, would shorten the open season from 12 months to 11 months in length. The department typically conducts bighorn sheep population surveys in August. Because of the mountainous and remote nature of bighorn sheep habitat, population surveys must be conducted from helicopters. The department has encountered several situations in which hunting activities were inadvertently adversely affected by department survey efforts. By closing the season at the end of July, the department believes these situations can be avoided. The proposed amendment, if adopted, would also provide the benefit of precluding the accidental over-issuance of permits due to post-survey harvest.

         The proposed amendment to §65.64, concerning Turkey, would allow hunters to perform the mandatory registration of harvested Eastern turkey via the department’s internet or mobile application. The department has developed computer and mobile device based applications that make it possible for hunters to register harvested birds without having to physically present the birds at check stations.

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 amendments are 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 amendments affect Parks and Wildlife Code, Chapters 42 and 61.

6. Rule Text.

         §65.8. Alternative Licensing System.

                 (a) Except for lifetime hunting licenses and  lifetime resident super combination hunting and "all water" fishing packages, the[The] tagging requirements of Parks and Wildlife Code, §§42.018, 42.0185, 42.020, and 46.0086 do not apply to any person in lawful possession of a license that was sold by the department without tags for white-tailed deer, mule deer, or turkey.

                 (b) Except for lifetime hunting licenses and  lifetime resident super combination hunting and "all water" fishing packages, the[The] requirements of this subchapter that require the attachment of license tags to wildlife resources do not apply to any person in lawful possession of a license that was sold by the department without tags for white-tailed deer, mule deer, or turkey. A properly executed wildlife resource document must accompany any white-tailed deer, mule deer, or turkey until the provisions of this title and Parks and Wildlife Code governing the possession of the particular wildlife resource cease to apply.

                 (c) The provisions of this section do not exempt any person from any provision of this subchapter that requires or prescribes the use of a wildlife resource document.

         §65.10. Possession of Wildlife Resources.

                 (a) – (k) (No change.)

                 (l) The identification requirements for desert bighorn sheep skulls are as follows.

                         (1) No person may possess the skull of a desert bighorn ram in this state unless:

                                  (A) one horn has been marked with a department identification plug by a department representative; or

                                  (B) the person also possesses evidence of lawful take in the state or country where the ram was killed.

                         (2) A person may possess the skull and horns of a desert bighorn ram found dead in the wild, provided:

                                  (A) the person did not cause or participate in the death of the ram; and

                                  (B) the person notifies a department biologist or game warden within 48 hours of discovering the dead ram and arranges for marking with a department identification plug by a department representative[; and]

                                  [(C) the landowner on whose property the skull was found signs an affidavit prior to the time the skull is marked that attests the place and date that the person discovered the ram].

                         (3) – (4) (No change.)

         §65.11. Lawful Means.

                 (1) (No change.)

                 (2) Archery.

                         (A) – (C) (No change.)

                         (D) [It is unlawful to hunt deer or turkey with a broadhead hunting point while in possession of a firearm during an archery-only season.]

                         [(E)] Lawful archery equipment and crossbows are the only lawful means that may be used during archery-only seasons, except as provided in paragraph (3) of this section.

                 (3) (No change.)

                 (4) Air guns. It is lawful to hunt squirrels with an air gun, provided:

                         (A) the gun is designed to be fired from the shoulder;

                         (B) the gun operates by using the force of a spring, air, or non-ignited compressed gas to expel a projectile;

                         (C) the muzzle velocity of the gun is at least 600 feet per second; and

                         (D) the projectile is at least .177 caliber (4.5 mm) in diameter.

                         (5)[(4)] Falconry. It is lawful to hunt any game bird or game animal by means of falconry under the provisions of Subchapter K of this chapter (relating to Raptor Proclamation).

                 (6)[(5)] Alligator.

                         (A) – (C) (No change.)

                 (7)[(6)] Use of laser sighting devices. All provisions concerning hunter education requirements apply to persons hunting with laser sighting devices under this paragraph.

                         (A) – (B) (No change.)

                 (8)[(7)] Special Provisions.

                         (A) – (B) (No change.)

         §65.32. Antlerless Mule Deer Permit.

                 (a) At the request of a landowner, the department may, based on evaluations of habitat and population, issue antlerless mule deer hunting permits for a specific tract of land.

                 (b) No antlerless mule deer hunting permit is required for mule deer killed during an archery-only open season in a county for which the bag limit during an archery-only season is designated as either sex.

                 (c) The annual and county bag limits for antlerless mule deer do not apply on a property for which a permit under this section has been issued, provided a valid, unused permit is possessed for each antlerless mule deer harvested on the property.

                 (d) A permit issued under this section is valid during any open season for mule deer on the property for which it was issued; however, during an archery-only open season, antlerless mule deer may be taken only by means of lawful archery equipment and crossbow.

         The amendments are 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 amendments affect Parks and Wildlife Code, Chapters 42 and 61.

         §65.42. Deer.

                 (a) (No change.)

                 (b) White-tailed deer. The open seasons, annual bag limits, and special provisions for white-tailed deer shall be as follows. If Managed Lands Deer Permits (MLDPs) have been issued for a tract of land in any county, they must be attached to all deer harvested on the tract of land, regardless of season. An MLDP buck permit may not be used to harvest or tag an antlerless deer. An MLDP antlerless permit may not be used to tag a buck deer.

                         (1) — (14) (No change.)

                         (15) In all other counties[Andrews, Bailey, Castro, Cochran, Collin, Dallas, El Paso, Gaines, Galveston, Hale, Hockley, Hudspeth, Lamb, Lubbock, Lynn, Parmer, Rockwall, Terry, Winkler, and Yoakum counties], there is no general open season.

                         (16) — (18) (No change.)

                 (c) Mule deer. The open seasons and annual bag limits for mule deer shall be as follows.

                         (1) In Armstrong, Borden, Briscoe, Carson, Childress, Coke, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Fisher, Floyd, Foard, Garza, Gray, Hall, Hansford, Hardeman, Hartley, Hemphill, Hutchinson, Kent, King, Knox, Lipscomb, Moore, Motley, Ochiltree, Oldham, Potter, Randall, Roberts, Scurry, Sherman, Stonewall, Swisher, and Wheeler counties, there is a general open season.

                                  (A) Open season: Saturday before Thanksgiving for 16 consecutive days.

                                  (B) Bag limit: two deer, no more than one buck.

                                  (C) Antlerless deer may be taken only by Antlerless Mule Deer or MLD Permits.

                         (2) (No change.)

                         (3) In Andrews, Bailey, Castro, Cochran, Dawson, Gaines, Hale, Hockley, Lamb, Lubbock, Lynn, Martin, Parmer, Terry, and Yoakum counties, there is a general open season.

                                  (A) Open season: Saturday before Thanksgiving for nine consecutive days.

                                  (B) Bag limit: two deer, no more than one buck.

                                  (C) Antlerless deer may be taken by permit only.

                         (4) (No change.)

                         (5) Archery-only open seasons and bag and possession limits shall be as follows. During an archery-only open season, deer may be taken only as provided for in §65.11(2) and (3) of this title (relating to Lawful Means). No antlerless permit is required unless MLD antlerless permits have been issued for the property.

                                  (A) In Armstrong, Borden, Briscoe, Carson, Childress, Coke, Collingsworth, Cottle, Crane, Crockett, Crosby, Culberson, Dallam, Deaf Smith, Dickens, Donley, Ector, El Paso, Fisher, Floyd, Foard, Garza, Gray, Hall, Hansford, Hardeman, Hartley, Hemphill, Hudspeth, Hutchinson, Jeff Davis, Kent, King, Knox, Lipscomb, Loving, Midland, Moore, Motley, Ochiltree, Oldham, Potter, Presidio, Randall, Reagan, Reeves, Roberts, Scurry, Sherman, Stonewall, Swisher, Upton, Val Verde, Ward, Wheeler, and Winkler counties, there is an open season.

                                          (i) Open season: from the Saturday closest to September 30 for 35 consecutive days.

                                          (ii) Bag limit: one buck deer.

                                  (B) – (C)(No change.)

         §65.46. Squirrel: Open Seasons, Bag, and Possession Limits.

                 (a)  [In Brazos, Burleson, Collin, Dallas, Ellis, Falls, Grayson, Grimes, Kaufman, Madison, Milam, and Rockwall counties, there is an open season from September 1 through August 31.]

                         [(1) Daily bag limit: 10 squirrels.]

                         [(2) Possession limit: 20 squirrels.]

                 [(b)] In Anderson, Angelina, Bowie, Camp, Cass, Chambers, Cherokee, Delta, Fannin, Franklin, Freestone, Galveston, Gregg, Hardin, Harris, Harrison, Henderson, Hopkins, Houston, Hunt, Jasper, Jefferson, Lamar, Leon, Liberty, Limestone, Marion, Montgomery, Morris, Nacogdoches, Navarro, Newton, Orange, Panola, Polk, Rains, Red River, Robertson,  Rusk, Sabine, San Augustine, San Jacinto, Shelby, Smith, Titus, Trinity, Tyler, Upshur, Van Zandt, Walker, and Wood Counties, there is a general open season for squirrel.

                         (1) Open season: May 1-May 31 and October 1 through the last[first] Sunday in February.

                         (2) Daily bag limit: 10 squirrels.

                         (3) Possession limit: 20 squirrels.

                 (b)[(c)] In Andrews, Bailey, Borden, Brewster, Briscoe, Carson, Castro, Cochran, Crane, Culberson, Dallam, Dawson, Deaf Smith, Ector, El Paso, Floyd, Gaines, Glasscock, Hale, Hansford, Hartley, Hockley, Howard, Hudspeth, Hutchinson, Jeff Davis, Lamb, Loving, Lubbock, Lynn, Martin, Midland, Moore, Oldham, Parmer, Potter, Presidio, Reagan, Reeves, Sherman, Swisher, Terry, Upton, Ward, Winkler, and Yoakum counties, there is no open season on squirrel.

                 (c)[(d)] In all other counties, there is an open season from September 1 through August 31, during which there is no bag limit.

                 (d)[(e)] In the counties listed in subsection (a)[(b)] of this section, there shall be a special youth-only general hunting season during which only licensed hunters 16 years of age or younger may hunt.

                         (1) open season: the Saturday and Sunday immediately preceding October 1.

                         (2) bag and possession limits: as specified in subsection (b) of this section.

         §65.48. Desert Bighorn Sheep: Open Season and Annual Bag Limit.

                 (a) In Brewster, Culberson, Hudspeth, Jeff Davis, and Presidio counties, there is a general open season for desert bighorn sheep.

                 (b) Open Season: From September 1 through July 31[August 31].

                 (c) Bag limit: One desert bighorn sheep ram as specified on the permit, by permit only.

                 (d) Possession Limit: One desert bighorn sheep ram.

         §65.64. Turkey.

                 (a)-(b) (No change.)

                 (c) Eastern turkey. The open seasons and bag limits for Eastern turkey shall be as follows. In Angelina, Bowie, Brazoria, Camp, Cass, Fannin, Fort Bend, Franklin, Grayson, Harrison, Hopkins, Jasper, Lamar, Marion, Matagorda, Morris, Nacogdoches, Newton, Panola, Polk, Red River, Sabine, San Augustine, Titus, Trinity, Upshur, Wharton, and Wood counties, there is a spring season during which both Rio Grande and Eastern turkey may be lawfully hunted.

                         (1) Open season: from April 15 through May 14.

                         (2) Bag limit (both species combined): one turkey, gobbler only.

                         (3) In the counties listed in this subsection:

                                  (A) it is unlawful to hunt turkey by any means other than a shotgun, lawful archery equipment, or crossbows;

                                  (B) it is unlawful for any person to take or attempt to take turkeys by the aid of baiting, or on or over a baited area; and

                                  (C) all turkeys harvested during the open season must be registered via the department’s internet or mobile application or at a designated check station[stations] within 24 hours of the time of kill. Harvested turkeys may be field dressed but must otherwise remain intact.

                 (d) (No change.)

         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