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Commission Agenda Item No. 5
Presenter: Dave Morrison

Action
2015-2016 Migratory Game Bird Proclamation
Late-Season Provisions
August 20, 2015

I.       Executive Summary:  This item seeks adoption of proposed changes to regulations governing the take of late-season species of migratory game birds.

II.     Discussion:  Responsibility for establishing seasons, bag limits, means, methods, and devices for harvesting migratory game birds within U.S. Fish and Wildlife Service (Service) frameworks is delegated to the Texas Parks and Wildlife (TPW) Commission under Parks and Wildlife Code, Chapter 64, Subchapter C. Parks and Wildlife Code, §64.022, authorizes the Executive Director, after notification of the Chairman, to engage in rulemaking. The proposed regulations (located at Exhibit A) appeared in the May 22, 2015, issue of the Texas Register (40 TexReg 2736). Following the issuance of early-season frameworks by the Service, the Executive Director issued Executive Order 15-002 on July 28, 2015, adopting those portions of the proposal affecting early-season species (31 TAC §§65.315, 65.319). Therefore, the TPW Commission will be asked to adopt only those portions of the proposal affecting late season species (31 TAC §§65.318, 65.320, 65.321). Staff has gathered and analyzed public comment pertaining to the late-season provisions of the proposal, and a summary will be presented at the time of the meeting.

III.    RECOMMENDATION:  Staff recommends that the TPW Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §§65.318, 65.320, and 65.321, concerning the Migratory Game Bird Proclamation, with changes as necessary to the proposed text (located at Exhibit A) as published in the May 22, 2015, issue of the Texas Register (40 TexReg 2736).”

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 5
Exhibit A

2015-2016 MIGRATORY GAME BIRD PROCLAMATION

PROPOSAL PREAMBLE

LATE-SEASON PROVISIONS

[NOTE: To avoid confusion, this exhibit has been abbreviated to exclude the portions of the original proposal regarding early season migratory game birds, which were adopted in July 2015.]

1. Introduction.

         The Texas Parks and Wildlife Department (the department) proposes amendments to §§65.315 and 65.318-65.321, concerning the Migratory Game Bird Proclamation.

         The United States Fish and Wildlife Service (Service) issues annual frameworks for the hunting of migratory game birds in the United States. Regulations adopted by individual states may be more restrictive than the federal frameworks, but may not be less restrictive. Responsibility for establishing seasons, bag limits, means, methods, and devices for harvesting migratory game birds within Service frameworks is delegated to the Texas Parks and Wildlife Commission (Commission) under Parks and Wildlife Code, Chapter 64, Subchapter C. Parks and Wildlife Code, §64.022, authorizes the  Commission to delegate rulemaking authority to the Executive Director.  Department regulations (31 TAC §65.313(f)) authorize the Executive Director, after notification of the Chairman of the Commission, to engage in rulemaking.

         At present, the Service has not issued either of the annual regulatory frameworks for migratory game birds. Typically, the Service issues the preliminary early-season (dove, teal, snipe, woodcock, rails, gallinules) frameworks in late June and the preliminary late-season (ducks, geese, cranes) frameworks in early August. The Service typically issues the final early-season frameworks in early August and the final late-season frameworks in late September. Because no regular Commission meetings occur between May and August, the early-season regulations are normally adopted by the Executive Director in early July.

         The proposed amendment to §65.318, concerning Open Seasons and Bag and Possession Limits — Late Season, would retain the basic season structure and bag limits from last year and adjust the season dates to account for calendar shift, with the exception of the season length for white-fronted geese and bag limits for Canada geese in the Eastern Zone, the bag limit for dark geese in the Western Zone, the season structure for ducks in the North Zone, and the season structure for sandhill cranes in Zone C.

White-fronted Geese

With respect to white-fronted geese in the Eastern Zone, the Service has increased the number of hunting days available for white-fronted geese, from 72 days to 86.  In keeping with the Commission policy to adopt the most liberal provisions possible under the federal frameworks (consistent with sound biological principles) the department proposes an opening date for white-fronted geese that is one week later than last year, adding the additional available days to the end of the season and resulting in a season running from November 7 to January 31.

Canada Geese

With respect to Canada geese in the Eastern Zone, the department proposes to increase the bag limit from three to five, including during the special early Canada goose season. Staff believes that an increase in the bag limit for Canada geese will provide additional hunting and control opportunity without depletion or waste of the resource.

Dark Geese

With respect for bag limits for white-fronted geese, the management plan for white-fronted geese recommends an increase in the bag limit in the Western Zone, from one white-fronted goose to two white-fronted geese. In keeping with the Commission policy to adopt the most liberal provisions possible under the federal frameworks (consistent with sound biological principles) the department proposes to increase bag limits for geese accordingly.

Ducks

With respect to ducks, the proposed amendment would retain the season structure from last year for the South Duck Zone, adjusted for calendar shift.  The proposed amendment would alter the North Zone duck season to open one week later compared to last year.  The proposed amendment takes a different approach to providing additional opportunity for hunters.  The split will be concurrent but the two zones will have different opening and closing dates (one week different for both) thereby adding a total of two weeks of opportunity for hunters wishing to hunt across zones.

Sandhill Cranes

The proposed amendment also would open the season for sandhill cranes in Zone C one week earlier compared to last year. The intent of the proposed amendment is to create more hunting opportunity by setting the sandhill crane season in Zone C to close concurrently with the duck season.

         The proposed amendment to §65.320, concerning Extended Falconry Season — Late Season Species, would adjust season dates to reflect calendar shift.

         The proposed amendment to §65.321, concerning Special Management Provisions, would adjust the dates for the conservation season on light geese to account for calendar shift.

         The proposed amendments are generally necessary to implement commission policy to provide the greatest hunter opportunity possible, consistent with hunter and landowner preference for starting dates and segment lengths, under frameworks issued by the Service. The Service has not issued regulatory frameworks for the 2015-2016 hunting seasons for migratory game birds; thus, the department cautions that the proposed regulations are tentative and may change significantly, depending on federal actions prior to the release of the early-season frameworks in late June and the late-season frameworks in August. However, it is the policy of the commission to adopt the most liberal provisions possible, consistent with hunter preference, under the Service frameworks in order to provide maximum hunter opportunity.

2. Fiscal Note.

         Clayton Wolf, Wildlife Division Director, has determined that for the first five years that the amendments as proposed are in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the rules as proposed.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing the rules as proposed will be the department’s discharge of its statutory obligation to manage and conserve the state’s populations of migratory game birds for the use and enjoyment of the public, consistent with the principles of sound biological management.

         (B) 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 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. 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 rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest migratory game bird resources in this state and therefore do not directly affect small businesses or micro-businesses. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

         There also will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as the department has determined that the rules as proposed will not impact local economies.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2008, as a result of the proposed rules.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted via the department website at www.tpwd.texas.gov or to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 or 1-800-792-1112 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, Chapter 64, which authorizes the Commission and the Executive Director to provide the open season and means, methods, and devices for the hunting and possessing of migratory game birds.

         The proposed amendments affect Parks and Wildlife Code, Chapter 64.

6. Rule Text.

         §65.318. Open Seasons and Bag and Possession Limits — Late Season. Except as specifically provided in this section, the possession limit for all species listed in this section shall be three times the daily bag limit.

                         (1) Ducks, mergansers, and coots. The daily bag limit for ducks is six, which may include no more than five mallards (only two of which may be hens); three wood ducks; three scaup (lesser scaup and greater scaup in the aggregate); two redheads; two pintail; one canvasback; and one "dusky" duck (mottled duck, Mexican like duck, black duck and their hybrids) during the seasons established in subparagraphs (A)(ii), (B)(ii), and (C)(ii) of this paragraph. For all other species not listed, the bag limit shall be six. The daily bag limit for coots is 15. The daily bag limit for mergansers is five, which may include no more than two hooded mergansers.

                                  (A) High Plains Mallard Management Unit:

                                          (i) all species other than "dusky ducks": October 31 – November 1, 2015 and November 6, 2015 — January 31, 2016[October 25 — 26, 2014 and October 31, 2014 — January 25, 2015].

                                          (ii) "dusky ducks": November 9, 2015 — January 31, 2016[November 3, 2014 — January 25, 2015].

                                  (B) North Zone:

                                          (i) all species other than "dusky ducks": November 7 — 29, 2015 and December 12, 2015 — January 31, 2016[November 1 — December 7, 2014 and December 20, 2014 — January 25, 2015].

                                          (ii) "dusky ducks": November 12-29, 2015 and December 12, 2015 — January 31, 2016[November 6 — December 7, 2014 and December 20, 2014 — January 25, 2015].

                                  (C) South Zone:

                                          (i) all species other than "dusky ducks": October 31 – November 29, 2015 and December 12, 2015 — January 24, 2016[November 1 — 30, 2014 and December 13, 2014 — January 25, 2015].

                                          (ii) "dusky ducks": November 5-29, 2015 and December 12, 2015 — January 24, 2016[November 6 — November 30, 2014 and December 13, 2014 — January 25, 2015].

                          (2) Geese.

                                  (A) Western Zone.

                                          (i) Light geese: October 31, 2015 – January 31, 2016[November 1, 2014 — February 1, 2015]. The daily bag limit for light geese is 20, and there is no possession limit.

                                          (ii) Dark geese: October 31, 2015 – January 31, 2016[November 1, 2014 — February 1, 2015]. The daily bag limit for dark geese is five, to include no more than two[one] white-fronted geese[goose].

                                  (B) Eastern Zone.

                                          (i) Light geese: November 7, 2015 — January 31, 2016[November 1, 2014 — January 25, 2015]. The daily bag limit for light geese is 20, and there is no possession limit.

                                          (ii) Dark geese:

                                                   (I) Season: November 7, 2015 — January 31, 2016;

                                                   (II) Bag limit: The daily bag limit for dark geese is five, to include no more than two white-fronted geese.

                                                   [(I)White-fronted geese: November 1, 2014 — January 11, 2015. The daily bag limit for white-fronted geese is two.]

                                                   [(II) geese: November 1, 2014 — January 25, 2015.

The daily bag limit for Canada geese is three].

                         (3) Sandhill cranes. A free permit is required of any person to hunt sandhill cranes in areas where an open season is provided under this proclamation. Permits will be issued on an impartial basis with no limitation on the number of permits that may be issued.

                                  (A) Zone A: October 31, 2015 – January 31, 2016[November 1, 2014 — February 1, 2015]. The daily bag limit is three. The possession limit is nine.

                                  (B) Zone B: November 20, 2015 – January 31, 2016[November 21, 2014 — February 1, 2015]. The daily bag limit is three. The possession limit is nine.

                                  (C) Zone C: December 19, 2015 — January 24, 2016[December 20, 2014 — January 25, 2015]. The daily bag limit is two. The possession limit is six.

                         (4) Special Youth-Only Season. There shall be a special youth-only waterfowl season during which the hunting, taking, and possession of geese, ducks, mergansers, and coots is restricted to licensed hunters 15 years of age and younger accompanied by a person 18 years of age or older, except for persons hunting by means of falconry under the provisions of §65.320 of this chapter (relating to Extended Falconry Season — Late Season Species). Bag and possession limits in any given zone during the season established by this paragraph shall be as provided for that zone by paragraphs (1) and (2) of this section. Season dates are as follows:

                                  (A) High Plains Mallard Management Unit: October 24 — 25, 2015[October 18-19, 2014];

                                  (B) North Zone: October 31 – November 1, 2015[October 25 — 26, 2014]; and

                                  (C) South Zone: October 24 — 25, 2015[October 25 — 26, 2014].

         §65.320. Extended Falconry Season — Late Season Species. It is lawful to take the species of migratory birds listed in this section by means of falconry during the following Extended Falconry Seasons.

                 (1) Ducks, coots, and mergansers:

                         (A) High Plains Mallard Management Unit: no extended season;

                         (B) North Duck Zone: February 1 — 14, 2016[January 26 — February 9, 2015];

                         (C) South Duck Zone: February 1 — 14, 2016[January 26 — February 9, 2015].

                 (2) The daily bag and possession limits for migratory game birds under this section shall not exceed three and nine birds, respectively, singly or in the aggregate.

         §65.321. Special Management Provisions. The provisions of paragraphs (1) — (3) of this section apply only to the hunting of light geese. All provisions of this subchapter continue in effect unless specifically provided otherwise in this section; however, where this section conflicts with the provisions of this subchapter, this section prevails.

                 (1) – (3) (No change.)

                 (4) Special Light Goose Conservation Period.

                         (A) From February 1 — March 20, 2016[January 26 — March 22, 2015], the take of light geese is lawful in Eastern Zone as defined in §65.317 of this title (relating to Zones and Boundaries for Late Season Species).

                         (B) From February 1 — March 20, 2016[February 2 — March 22, 2015], the take of light geese is lawful in the Western Zone as defined in §65.317 of this title.

                         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