Commission Agenda Item No. 16
Action
2007-2008 Migratory Game Bird Proclamation
Late Season Provisions
August 23, 2007

1. Introduction.

The Texas Parks and Wildlife Department (the department) proposes the repeal of §65.310, amendments to §§65.309, 65.312, 65.313, 65.315, and 65.318-65.321, and new 65.301 and 65.310, concerning the Migratory Game Bird Proclamation.

New §65.301, concerning Applicability, would clearly establish that the subchapter governs all migratory bird hunting in the state. The proposed new section also would clarify that nothing in the subchapter is to be construed to supersede the requirements of Title 50, Part 20, of the United States Code of Federal Regulations (50 CFR Part 20). Under the Migratory Bird Treaty Act of 1918, the U.S. Fish and Wildlife Service (Service) is responsible for establishing the basic regulatory frameworks for the management of migratory birds in the United States, including provisions governing the hunting of migratory birds, such as season lengths, bag and possession limits, means and methods, and documentation requirements. Each state may adopt rules to implement the federal regulations, but may not adopt rules that are inconsistent with the federal rules.

The proposed amendment to §65.309, concerning Definitions, would add definitions that are currently contained either in §65.3, concerning the Statewide Hunting and Fishing Proclamation, or 50 CFR Part 20. The provisions are being moved in order to create a consolidated body of regulations in a single subchapter. Each of the definitions is currently in effect as part of state or federal law, so the effect of the proposed amendment is nonsubstantive.

For many years, current §65.310 has contained what is essentially a summary or abstract of the federal regulations. Proposed new §65.310 would replace the current rule with the exact language from the federal regulation concerning illegal means and methods, with slight conforming changes where necessary to accommodate terminological variations or to provide clarification. For instance, the federal regulation specifies that no pistol or rifle may be use to take migratory game birds. Proposed new §65.310(1) would add language to clarify that the prohibition includes airguns. The department notes that the proposed action is nonsubstantive; it neither creates new or additional provisions nor materially alters provisions of the federal or state laws currently in effect.

The proposed amendment to §65.312, concerning Possession of Migratory Game Birds, would clarify that a properly completed wildlife resource document (WRD) satisfies the tagging requirements of 50 CFR Part 20. The amendment is necessary to ensure that the regulations are clear as to the legal requirements concerning the possession and documentation of migratory game birds.

The proposed amendment to §65.313, concerning General Rules, would add a new subsection (d) to clarify a federal provision, and a new subsection (e) to adopt certain federal provisions by reference.

Under Parks and Wildlife Code, §64.007, no person may possess a live game bird except as authorized by the code. Under Parks and Wildlife Code, §62.011, it is an offense for any person who wounds a game bird not to make a reasonable effort to retrieve the bird and include it in the daily bag limit. Proposed new §65.313(d) would clearly state that wounded birds must be immediately killed and be made part of the daily bag limit.

The proposed amendment would also create a new subsection (e) to adopt certain federal regulations by reference. The department has determined that 50 CFR Part 20 Subparts E (Transportation within the United States), F (Exportation), G (Importation), and H (Federal, State, and Foreign Law) do not offer any conflict of interpretation or pose a possibility for confusion as written and thus do not need to be reproduced verbatim in state regulations. Therefore, the department proposes to adopt them by reference.

The proposed amendment to §65.315, concerning Open Seasons and Bag and Possession Limits — Early Season Species, would adjust the season dates for early-season species of migratory game birds to account for calendar-shift (i.e., to ensure that seasons open on the desired day of the week, since dates from a previous year do not fall on the same days in following years). The proposed amendment would implement a 16-day teal season to run from September 15-30, 2007, which must be approved by the Service before it can be implemented. If the Service does not approve a 16-day season, the department will adopt a 9-day season to run September 22-30, 2007.

The proposed amendment to §65.318, concerning Open Seasons and Bag and Possession Limits — Late Season Species, adjusts the season dates for late-season species of migratory game birds to account for calendar-shift. The proposed amendment also would allow for the take of geese during the special youth-only season. By federal law, the special youth-only season is limited to ducks; however, there is the possibility that the Service might authorize the take of geese during the youth-only season. The amendment is necessary to provide the greatest opportunity possible, particularly to youth.

The proposed amendment to §65.319, concerning Extended Falconry Season—Early Season Species, adjusts season dates for the take of early-season species of migratory game birds by means of falconry to reflect calendar shift.

The proposed amendment to §65.320, concerning Extended Falconry Season—Late Season Species, adjusts season dates for the take of late-season species of migratory game birds by means of falconry, also 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 and insert language to prevent conflicts with §65.310. The Service has provided that the use of amplified or electronic calls and unplugged shotguns is lawful during the light goose conservation season.

The proposed amendments are generally necessary to implement commission policy to provide the greatest hunter opportunity possible, consistent with hunter preference for season starting dates and segment lengths, under frameworks issued by the Service. The Service has not issued regulatory frameworks for the 2007-2008 hunting seasons for migratory game birds; thus, the department cautions that the proposed regulations are tentative and may change significantly, depending on federal actions. However, it is the policy of the commission to adopt the most liberal provisions possible, consistent with hunter preference, under the frameworks in order to provide maximum hunter opportunity.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, 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. Macdonald 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, as well as the implementation of commission policy to maximize recreational opportunity for the citizens of the state.

(B) There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed. Since the major factors that could negatively affect participation and/or economic activity associated with migratory bird hunting, such as reductions in bag and possession limits, season lengths, and zone boundary changes are established by the Service and cannot be negated or altered by state action, the department would have no choice but to implement them. However, it is the policy of the Texas Parks and Wildlife Commission policy to provide the maximum opportunity possible under the federal frameworks.

(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 2007, as a result of the proposed rules.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Vernon Bevill, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4578 or 1-800-792-1112.

5. Statutory Authority.

The repeal is 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 repeal affects Parks and Wildlife Code, Chapter 64.

§65.310. Means, Methods, and Special Requirements.

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 amendments and new sections 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 amendments and new sections affect Parks and Wildlife Code, Chapter 64.

§65.301. Applicability.

(a) No person shall at any time, by any means, or in any manner hunt, possess, transport, or transfer any migratory game bird except as provided in this subchapter.

(b) No provision of this subchapter shall be construed to relieve a person from the restrictions, conditions, and requirements of federal regulations contained in 50 Code of Federal Regulations (CFR) Part 20.

§65.309. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation).

(1) Baited area—Any area where salt, grain, or other feed has been placed, exposed, deposited, distributed, or scattered, if that salt, grain, or other feed could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them. Any such area will remain a baited area for ten days following the complete removal of all such salt, grain, or other feed.

(2) Baiting—The direct or indirect placing, exposing, depositing, distributing, or scattering of salt, grain, or other feed that could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them.

(3) Daily bag limit — The quantity of a species of migratory game bird that may be lawfully taken in one day

(4) Day — A 24-hour period of time that begins at midnight and ends at midnight.

(5)[(3)] Dark geese — Canada, white-fronted, and all other geese except light geese.

(6)[(4)] Harvest Information Program (HIP) — A mandatory certification process for all persons who hunt or intend to hunt migratory game birds. To be certified, a person must answer a series of questions about their migratory game-bird hunting habits.

(7)[(5)] Legal shotgun — A shotgun not larger than 10 gauge, fired from the shoulder, and incapable of holding more than three shells. (Guns capable of holding more than three shells must be plugged with a one-piece filler which is incapable of removal without disassembling the gun, so the gun's total capacity does not exceed three shells.)

(8)[(6)] Light geese — Snow, blue, and Ross' geese.

(9)[(7)] Livestock — Cattle, horses, mules, sheep, goats, and hogs.

(10)[(8)] Manipulation — The alteration of natural vegetation or agricultural crops, including but not limited to mowing, shredding, discing, rolling, chopping, trampling, flattening, burning, and herbicide treatments. Manipulation does not include the distributing or scattering of grain, seed, or other feed after removal from or storage on the field where grown.

(11) Migratory bird preservation facility — A stationary facility designed and constructed to store or process game animals and game birds.

(12)[(9)] Natural vegetation — Any non-agricultural, native, or naturalized plant species that grows at a site in response to planting or from existing seeds or propagule. Natural vegetation does not include planted millet. However, planted millet that grows on its own in subsequent years after the planting is considered natural vegetation.

(13)[(10)] Nontoxic shot—Any shot approved by the director, U.S. Fish and Wildlife Service.

(14)[(11)] Normal agricultural practice — A normal agricultural planting, harvesting, or post-harvest manipulation, or livestock feeding conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.

(15)[(12)] Normal soil stabilization practice — a planting for agricultural soil erosion control or post-mining land reclamation conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.

(16) Paraplegic — An individual afflicted with paralysis of the lower half of the body with involvement of both legs, usually due to disease of or injury to the spinal cord.

(17) Possession limit—The maximum number of a species of migratory game bird that may be lawfully possessed at one time.

(18)[(13)] Personal residence (personal abode) —One's principal or ordinary home or dwelling place. The term does not include a temporary or transient place of residence or dwelling such as a hunting club, or any club house, cabin, tent, or trailer house used as a hunting club, or any hotel, motel, or rooming house used during a hunting, pleasure, or business trip.

(19)[(14)] Sinkbox—Any type of low floating device having a depression which affords the hunter a means of concealing himself below the surface of water.

(20)[(15)] Waterfowl — ducks (including teal), geese, mergansers, and coots.

[(16) Wildlife resource—For the purposes of this subchapter, wildlife resource includes all migratory birds.]

§65.310. Means and Methods. Migratory birds may be taken by any method except those prohibited in this section. Except as provided in this subchapter, no person shall take migratory game birds:

(1) with a trap, snare, net, any type of rifle or pistol (including airguns), swivel gun, shotgun larger than 10 gauge, punt gun, battery gun, machinegun, fish hook, poison, drug, explosive, or stupefying substance;

(2) with a shotgun of any description capable of holding more than

three shells, unless it is plugged with a one-piece filler, incapable of removal without disassembling the gun, so its total capacity does not exceed three shells;

(3) from or by means, aid, or use of a sinkbox or any other type of low-floating device, having a depression affording the hunter a means of concealment beneath the surface of the water;

(4) from or by means, aid, or use of any motor vehicle, motor-driven land conveyance, or aircraft of any kind, except that paraplegics and persons missing one or both legs may take from any stationary motor vehicle or stationary motor-driven land conveyance;

(5) from or by means of any motorboat or other craft having a motor attached, or any sailboat, unless the motor has been completely shut off and/or the sails furled, and its progress therefrom has ceased. A craft under power may be used to retrieve dead or crippled birds; however, crippled birds may not be shot from such craft under power;

(6) by the use or aid of live birds as decoys;

(7) where tame or captive live ducks or geese are present unless such birds are and have been for a period of 10 consecutive days prior to such taking, confined within an enclosure which substantially reduces the audibility of their calls and totally conceals such birds from the sight of wild migratory waterfowl;

(8) by the use or aid of recorded or electrically amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds;

(9) by means or aid of any motor-driven land, water, or air conveyance, or any sailboat used for the purpose of or resulting in the concentrating, driving, rallying, or stirring up of any migratory bird;

(10) by the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited. No person may place or direct the placement of bait on or adjacent to an area for the purpose of causing, inducing, or allowing any person to take or attempt to take any migratory game bird by the aid of baiting on or over the baited area. However, provided a land or area is not otherwise baited, nothing in this paragraph prohibits:

(A) the taking of any migratory game bird, including waterfowl, coots, and cranes on or over:

(i) standing crops or flooded standing crops (including aquatics);

(ii) standing, flooded, or manipulated natural vegetation;

(iii) flooded harvested croplands; or

(iv) lands or areas where seeds or grains have been scattered solely as the result of a normal agricultural planting, harvesting, post-harvest manipulation or normal soil stabilization practice;

(v) from a blind or other place of concealment camouflaged with natural vegetation;

(vi) from a blind or other place of concealment camouflaged with

vegetation from agricultural crops, as long as such camouflaging does not result in the exposing, depositing, distributing or scattering of grain or other feed; or

(vii) on or over standing or flooded standing agricultural crops where grain is inadvertently scattered solely as a result of a hunter entering or exiting a hunting area, placing decoys, or retrieving downed birds; or

(B) the taking of any migratory game bird, except waterfowl, coots and cranes, on or over lands or areas that are not otherwise baited areas, and where grain or other feed has been distributed or scattered solely as the result of manipulation of an agricultural crop or other feed on the land where grown, or solely as the result of a normal agricultural operation; or

(11) while possessing loose shot that is not non-toxic shot or shotshells containing any shot other than non-toxic shot.

§65.312. Possession of Migratory Game Birds.

(a) For all migratory birds taken for which there is a possession limit, the possession limit shall apply until the birds have reached the personal residence of the possessor and are finally processed.

(b) A person may give, leave, receive, or possess any species of legally taken migratory game birds, or parts of birds, that are protected by a bag or possession limit, if the birds are accompanied by a wildlife resource document (WRD)from the person who killed the birds. For example, a WRD[wildlife resource document] is required if the birds are being transported by another person for the hunter, or if the birds have been left for cleaning, storage (including temporary storage), shipment, or taxidermy services. The WRD[wildlife resource document] is not required of a person who lawfully killed the birds to possess the birds, or if the birds are transferred at the personal residence of the donor or donee. If the birds have been finally processed at a cold storage or processing facility and a person transports more than a legal possession limit, then a WRD[wildlife resource document] must accompany the birds in excess of the possession limit until they reach the permanent residence of the possessor. A properly executed WRD satisfies the tagging requirements of 50 CFR Part 20.Except as provided in this subsection, a WRD[wildlife resource document] shall accompany the birds until the birds reach their final destination and must contain the following information:

(1) the name, signature, address, and hunting license number of the person who killed the birds;

(2) the name of the person receiving the birds;

(3) the number and species of birds or parts;

(4) the date the birds were killed; and

(5) the location where the birds were killed (e.g., name of ranch; area; lake, bay, or stream; county).

(c) No person may:

(1) take or have in possession more than the bag and possession limits of each species of migratory game birds except as provided in this section;

(2) possess migratory game birds on the opening day of the season in excess of the applicable daily bag limit;

(3) possess more than one daily bag limit of freshly killed migratory game birds while in the field or while returning from the field to one's hunting camp, automobile or other motor driven land conveyance, aircraft, temporary lodging facility, personal residence, or cold storage or processing facility; or

(4) possess freshly killed migratory game birds during the closed season.

§65.313. General Rules.

(a) No person shall hunt migratory game birds except during the open season as provided herein, or at any time except during the hours as provided herein. All dates are inclusive.

(b) Shooting hours for migratory game birds are from one-half hour before sunrise to sunset, except during the special white-winged dove season. In the special white-winged dove zone during the special white-winged dove season, shooting hours are from noon to sunset.

(c) No person shall hunt migratory game birds in this state unless that person is certified in the Harvest Information Program.

(d) Every migratory game bird wounded by hunting and reduced to possession by a hunter shall be immediately killed and become a part of the daily bag limit.

(e) The provisions of 50 CFR Part 20, Subparts E, F, G, and H in effect on September 1, 2007 are adopted by reference.

(f)[(d)] The executive director may, after notifying the Chairman of the Commission, authorize any rulemaking necessary to modify the provisions of this subchapter.

§65.315 Open Seasons and Bag and Possession Limits—Early Season.

(a) Rails.

(1) Dates: September 15 — 30, 2007 and November 3 — December 26, 2007[September 16 — 24, 2006 and November 4, 2006 — January 3, 2006].

(2) Daily bag and possession limits:

(A) king and clapper rails: 15 in the aggregate per day; 30 in the aggregate in possession.

(B) sora and Virginia rails: 25 in the aggregate per day; 25 in the aggregate in possession.

(b) Dove seasons.

(1) North Zone.

(A) Dates: September 1 — October 30, 2007[September 1 — October 30, 2006.]

(B) Daily bag limit: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 30 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(2) Central Zone.

(A) Dates: September 1 — October 30, 2007 and December 26, 2007-January 4, 2008[September 1 — October 30, 2006 and December 26, 2006 — January 4, 2007].

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(3) South Zone.

(A) Dates: Except in the special white-winged dove area as defined in §65.314 of this title (relating to Zones and Boundaries for Early Season Species), September 21 — November 11, 2007 and December 26, 2007 — January 12, 2008[September 22 — November 12, 2006 and December 26, 2006 — January 12, 2007].

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(4) Special white-winged dove area.

(A) Dates: September 1, 2, 8, and 9, 2007[September 2, 3, 9, and 10, 2006].

(i) Daily bag limit: 12 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than four mourning doves and two white-tipped doves per day;

(ii) Possession limit: 24 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than eight mourning doves and four white-tipped doves in possession.

(B) Dates: September 21 — November 11, 2007 and December 26, 2007 — January 8, 2008[September 22 — November 12, 2006 and December 26, 2006 — January 8, 2007].

(i) Daily bag limit: 12 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than two white-tipped doves per day;

(ii) Possession limit: 24 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than four white-tipped doves in possession.

(c) Gallinules.

(1) Dates: September 15 — 30, 2007 and November 3 — December 26, 2007[September 16 — 24, 2006 and November 4, 2006 — January 3, 2007].

(2) Daily bag and possession limits: 15 in the aggregate per day; 30 in the aggregate in possession.

(d) September teal-only season.

(1) Dates: September 15 — 30, 2007[September 9 — 24, 2006].

(2) Daily bag and possession limits: four in the aggregate per day; eight in the aggregate in possession.

(e) Red-billed pigeons, and band-tailed pigeons. No open season.

(f) Shorebirds. No open season.

(g) Woodcock: December 18, 2007 — January 31, 2008[December 18, 2006 — January 31, 2007]. The daily bag limit is three. The possession limit is six.

(h) Wilson's snipe (Common snipe): November 3, 2007 — February 17, 2008[November 4, 2006 — February 18, 2007]. The daily bag limit is eight. The possession limit is 16.

§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 twice the daily bag limit.

(1) Ducks, mergansers, and coots. The daily bag limit for ducks is five, which may include no more than two scaup, two redheads, two wood ducks, and no more than one (in the aggregate) of the following: mallard hen, pintail, canvasback, or dusky duck (mottled duck, black duck, Mexican duck, or hybrid of those species). 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: October 27-28, 2007, and November 2, 2007-January 27, 2008[October 28-29, 2006, and November 3, 2006-January 28, 2007].

(B) North Zone: November 3-25, 2007 and December 8, 2007-January 27, 2008[November 4-26, 2006 and December 9, 2006-January 28, 2007].

(C) South Zone: November 3-25, 2007 and December 8, 2007-January 27, 2008[November 4-26, 2006 and December 9, 2006-January 28, 2007].

(2) Geese.

(A) Western Zone.

(i) Light geese: November 3, 2007-February 5, 2008[ November 4, 2006-February 6, 2007]. The daily bag limit for light geese is 20, and there is no possession limit.

(ii) Dark geese: November 3, 2007-February 5, 2008[ November 4, 2006-February 6, 2007]. The daily bag limit for dark geese is four, which may not include more than three Canada geese or more than one white-fronted goose.

(B) Eastern Zone.

(i) Light geese: November 3, 2007-January 27, 2008[November 4, 2006-January 28, 2007]. The daily bag limit for light geese is 20, and there is no possession limit.

(ii) Dark geese:

(I) white-fronted geese: November 3, 2007-January 13, 2008[November 4, 2006-January 14, 2007]. The daily bag limit for white-fronted geese is two.

(II) Canada geese: November 3, 2007-January 27, 2008[November 4, 2006-January 28, 2007]. 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: November 3, 2007 — February 3, 2008[ November 4, 2006 — February 4, 2007]. The daily bag limit is three. The possession limit is six.

(B) Zone B: November 23, 2007 — February 3, 2008[ November 24, 2006 — February 4, 2007]. The daily bag limit is three. The possession limit is six.

(C) Zone C: December 22, 2007 — January 27, 2008[December 23, 2006 — January 28, 2007]. The daily bag limit is two. The possession limit is four.

(4) Special Youth-Only Season. There shall be a special youth-only waterfowl[duck] 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 paragraph (1) of this section. Season dates are as follows:

(A) High Plains Mallard Management Unit: October 20-21, 2007[October 21-22, 2006];

(B) North Zone: October 27-28, 2007[October 28-29, 2006]; and

(C) South Zone: October 27-28, 2007[October 28-29, 2006].

§65.319. Extended Falconry Season—Early Season Species.

(a) 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) mourning doves and white-winged doves: November 19 — December 25, 2007[November 19 — December 25, 2006].

(2) rails and gallinules: December 27, 2007 — February 1, 2008[January 4 — February 9, 2007].

(3) woodcock: November 24 — December 17, 2007[November 24 — December 17, 2006].

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

§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: January 28- February 11, 2008[January 29- February 12, 2007];

(C) South Duck Zone: January 28- February 11, 2008[January 29- February 12, 2007].

(2) The daily bag and possession limits for migratory game birds under this section shall not exceed three and six 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) Means and methods. The[In addition to the means and methods authorized in §65.310(a) of this title (relating to Means, Methods, and Special Requirements), the] following means and methods are lawful during the time periods set forth in paragraph (4) of this section:

(A) shotguns capable of holding more than three shells; and

(B) electronic calling devices.

(2) Possession. During the time periods set forth in paragraph (4) of this section:

(A) there shall be no bag or possession limits; and

(B) the provisions of §65.312 of this title (relating to Possession of Migratory Game Birds) do not apply; and

(C) a person may give, leave, receive, or possess legally taken light geese or their parts, provided the birds are accompanied by a wildlife resource document (WRD) from the person who killed the birds. A properly executed WRD satisfies the tagging requirements of 50 CFR Part 20.The WRD[wildlife resource document] is not required if the possessor lawfully killed the birds; the birds are transferred at the personal residence of the donor or donee; or the possessor also possesse a valid hunting license, a valid waterfowl stamp, and is HIP certified. The WRD[wildlife resource document] shall accompany the birds until the birds reach their final destination, and must contain the following information:

(i) the name, signature, address, and hunting license number of the person who killed the birds;

(ii) the name of the person receiving the birds;

(iii) the number and species of birds or parts;

(iv) the date the birds were killed; and

(v) the location where the birds were killed (e.g., name of ranch; area; lake, bay, or stream; county).

(3) Shooting hours. During the time periods set forth in paragraph (4) of this section, shooting hours are from one half-hour before sunrise until one half-hour after sunset.

(4) Special Light Goose Conservation Period.

(A) From January 28-March 30, 2008[January 29-March 25, 2007], 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 6-March 30, 2008[February 7-March 25, 2007], the take of light geese is lawful in the Western Zone as defined in §65.317 of this title (relating to Zones and Boundaries for Late Season Species).

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

1. Introduction.

The Texas Parks and Wildlife Department (the department) adopts the repeal of §65.310, amendments to §§65.309, 65.312, 65.313, 65.315, and 65.319, and new 65.301 and 65.310, concerning the Migratory Game Bird Proclamation. Sections 65.309 and 65.315 are adopted with changes to the proposed rules as published in the May 25, 2007, issue of the Texas Register (32 TexReg 2832). The repeal of §65.310, amendments to §§65.312, 65.313, and 65.319, and new 65.301 and 65.310 are adopted without change and will not be republished.

The change to §65.309, concerning Definitions, alters paragraph (11) to clarify that for the purposes of the subchapter, the federal definition of migratory bird preservation facility includes a cold storage or processing facility as defined in Parks and Wildlife Code, §42.001. The change is necessary to avoid confusion resulting from differential interpretation.

The change to §65.315, concerning Open Seasons, Bag, and Possession Limits — Early Season creates a nine-day season for teal in the High Plains Mallard Management Unit and clarifies terminology by adding language to indicate that the term “gallinules” includes moorhens and purple gallinules, and that “common snipe” includes jacksnipe. The change is necessary to provide hunter opportunity and to prevent confusion resulting from differential interpretation.

2. Justification for the Rules.

The amendments are generally necessary to implement commission policy to provide the greatest hunter opportunity possible, consistent with hunter preference for season starting dates and segment lengths, under frameworks issued by the Service. It is the policy of the commission to adopt the most liberal provisions possible, consistent with hunter preference, under the frameworks in order to provide maximum hunter opportunity.

New §65.301, concerning Applicability, establishes that the subchapter governs all migratory bird hunting in the state. The new section also clarifies that nothing in the subchapter is to be construed to supersede the requirements of Title 50, Part 20, of the United States Code of Federal Regulations (50 CFR Part 20). Under the Migratory Bird Treaty Act of 1918, the U.S. Fish and Wildlife Service (Service) is responsible for establishing the basic regulatory frameworks for the management of migratory birds in the United States, including provisions governing the hunting of migratory birds, such as season lengths, bag and possession limits, means and methods, and documentation requirements. Each state may adopt rules to implement the federal regulations, but may not adopt rules that are inconsistent with the federal rules. The amendment is necessary for purposes of clarity and edification.

The amendment to §65.309, concerning Definitions, adds definitions that are currently contained either in §65.3, concerning the Statewide Hunting and Fishing Proclamation, or 50 CFR Part 20. The provisions have been added in order to create a consolidated body of regulations in a single subchapter. Each of the definitions is currently in effect as part of state or federal law, so the effect of the amendment is nonsubstantive. The amendment is necessary for purposes of clarity and edification.

For many years, §65.310, which is being repealed, contained what is essentially a summary or abstract of the federal regulations. New §65.310 is a verbatim repetition of federal rule language concerning illegal means and methods, with slight conforming changes where necessary to accommodate terminological variations or to provide clarification. For instance, the federal regulation specifies that no pistol or rifle may be use to take migratory game birds. New §65.310(1) as adopted adds language to clarify that the prohibition includes airguns. The department notes that the action is nonsubstantive; it neither creates new or additional provisions nor materially alters provisions of the federal or state laws currently in effect. The amendment is necessary for purposes of clarity and edification.

The amendment to §65.312, concerning Possession of Migratory Game Birds, clarifies that a properly completed wildlife resource document (WRD) satisfies the tagging requirements of 50 CFR Part 20. The amendment is necessary to ensure that the regulations are clear as to the legal requirements concerning the possession and documentation of migratory game birds.

The amendment to §65.313, concerning General Rules, adds a new subsection (d) to clarify a federal provision, and a new subsection (e) to adopt certain federal provisions by reference.

Under Parks and Wildlife Code, §64.007, no person may possess a live game bird except as authorized by the code. Under Parks and Wildlife Code, §62.011, it is an offense for any person who wounds a game bird not to make a reasonable effort to retrieve the bird and include it in the daily bag limit. New §65.313(d) clearly states that wounded birds must be immediately killed and be made part of the daily bag limit. The amendment is necessary for purposes of clarity and edification.

The amendment would also create a new subsection (e) to adopt certain federal regulations by reference. The department has determined that 50 CFR Part 20 Subparts E (Transportation within the United States), F (Exportation), G (Importation), and H (Federal, State, and Foreign Law) do not offer any conflict of interpretation or pose a possibility for confusion as written and thus do not need to be reproduced verbatim in state regulations. Therefore, the department has adopted them by reference. The amendment is necessary to avoid unnecessary and lengthy reproduction of federal rules.

The amendment to §65.315, concerning Open Seasons and Bag and Possession Limits — Early Season Species, adjusts the season dates for early-season species of migratory game birds to account for calendar-shift (i.e., to ensure that seasons open on the desired day of the week, since dates from a previous year do not fall on the same days in following years). The amendment also implements a 16-day teal season to run from September 15-30, 2007 in all areas of the state other than the High Plains Mallard Management Unit, where there will be a nine-day season running from September 15-23, 2007. The amendment is necessary not only to establish season dates and bag limits, but to ensure that seasons fall in such a way as to provide the greatest hunting opportunity possible.

The amendment to §65.319, concerning Extended Falconry Season—Early Season Species, adjusts season dates for the take of early-season species of migratory game birds by means of falconry to reflect calendar shift. The amendment is necessary not only to establish season dates and bag limits, but to ensure that seasons fall in such a way as to provide the greatest hunting opportunity possible.

3. How the Rules Will Function.

New §65.301 will function by establishing that the subchapter governs all migratory bird hunting in the state in conjunction with the requirements of Title 50, Part 20, of the United States Code of Federal Regulations (50 CFR Part 20).

The amendment to §65.309 will function by adding definitions that are necessary for compliance with and enforcement of the rules.

New §65.310 will function by making the state standards means and methods identical to federal standards to eliminate ambiguity.

The amendment to §65.312 will function by clarifying the documentation requirements for persons in possession of migratory birds.

The amendment to §65.313 will function by clarifying that wounded birds must be immediately killed and be made part of the daily bag limit, and by adopting federal rules by reference.

The amendment to §65.315 will function by establishing the seasons and bag limits for the hunting of early-season species of migratory game birds.

The amendment to §65.319 will function by establishing the season length and bag limits for the take of early-season species of migratory game birds by means of falconry.

4. Summary of Public Comment.

The department received five comments opposing adoption of the portion of the proposed rule that provides for consistency with federal regulations. Of the four comments, two offered a specific reason or rationale for opposing adoption. Those comments, accompanied by the department’s response to each, are as follows.

One commenter opposed adoption and stated that the department should be able to close, open, or extend seasons on game birds depending on rise or decline of bird populations. The department disagrees with the comment and responds that the maximum season length is set by federal law and cannot be lengthened by the state. No changes were made as a result of the comment.

One commenter opposed adoption and stated personal opposition to the hunting, trapping and snaring of any animals. The department disagrees with the comment and responds that state and federal law both provide for the lawful hunting of certain species of migratory birds under the tenets of sound biological science. No changes were made as a result of the comment.

The department received 88 comments supporting adoption of the proposed rule.

The department received 41 comments opposing the portion of the proposed rule establishing dove seasons. Of the 41 comments, 26 offered a specific reason or rationale for opposing adoption. Those comments, accompanied by the department’s response to each, are as follows.

One commenter opposed adoption and stated a preference for the winter segment in the North Zone to be the same as that in the Central Zone. The commenter stated that good dove hunting is missed in North Texas because the season is closed. The department disagrees with the comment and responds that hunter surveys indicate that a shorter season and higher bag limit is preferred by hunters in the North Zone. No changes were made as a result of the comment.

One commenter opposed adoption and stated a preference for more days in the winter segment in the Central Zone. The commenter stated that in many areas of the Central Zone, doves do not appear in larger numbers until several cold fronts have moved through, and the hunting is better at that time. The department disagrees with the comment and responds that hunter preference is for the season structure as adopted. Hunter surveys indicate central zone dove hunters prefer the longest season length allowed by federal regulation (70 days). The department is not permitted to add more segments or days to the winter season without taking those days from the first or end of the first season segment. Central zone hunters have expressed concern about removal of any days from the beginning or end of the first season segment.

The department also responds that dove numbers are not dependent on the dates selected for hunting opportunity, but on various factors of the natural world that are beyond the control of the department.
Two commenters opposed adoption and stated that the special white-winged dove season should be open on Monday Labor Day in order to provide an additional day of hunting on opening weekend. The department disagrees with the comments and responds that that hunter preference is for the earliest possible opener allowed under federal frameworks, which is September 1, irrespective of the day of the week it may fall on. Federal frameworks allow four days between September 1-19 for the special white-winged dove season. Creating a three-day opening in those years when September 1 falls on a Friday would require that the fourth day either be added during the week or taken as a one-day opportunity on a weekend. The department believes that running the season past the opening weekend and into the following week or setting a one-day opportunity by itself would reduce hunter opportunity and participation. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there should be a statewide bag limit of 10 birds. The department disagrees with the comment and responds that the Service authorizes two season structures, a 70-day season with a 12-bird bag, or a 60-day season with a 15-bird bag. Although the department may reduce bag limits below those authorized by the Service, commission policy is to adopt the most liberal bag limits possible under frameworks issued by the Service. No changes were made as a result of the comment.

Six commenters opposed adoption and stated a preference for a longer season and a lower bag limit in the North Zone. The department disagrees with the comments and responds that hunter surveys indicate a preference for the option offered by the Service for a shorter season with a higher bag limit. No changes were made as a result of the comments.
One commenter opposed adoption and stated that there should be a statewide opening day of September 1 to take advantage of the steadily growing white-wing numbers in the South Zone, with a mourning dove bag limit of two in the South Zone until September 20. The commenter stated that this would protect late-nesting mourning dove while allowing for incidental, honest mistakes by hunters. The department disagrees with the comment and responds that the September 1 opening date is approved by the Service only for the North and Central zones, and that commission policy is to adopt the most liberal bag limits possible under the frameworks issued by the Service. The department also notes that the Service will require extensive nesting chronology and survival studies of mourning doves in South Texas before allowing the season to open before Sept. 20 in the South Zone. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the current zone boundaries south of I-10 do not work for hunters. The commenter stated that doves get driven through the area too quickly by early cold fronts and that the use of natural landmarks like rivers would be better because birds don’t use highway maps when they migrate. The department disagrees with the comment and responds that changes to the zone boundaries are not possible at this time because alterations to zone boundaries must receive prior approval from the Service, and that dove movements are dependent on various factors of the natural world beyond the control of the department. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the South Zone season should run later in January to avoid conflicts with deer hunters. The department disagrees with the comment and responds that hunter preference is for the earliest season possible. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there should be a 15-bird bag limit in the Central Zone. The department disagrees with the comment and responds that a 15-bird bag limit is only possible if a shorter season is selected. Hunter surveys indicate a preference for a shorter season with a higher bag limit in the Central Zone. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the season should run later in the North Zone. The commenter stated that there are more doves present during the end of December than during most of September and October and it would be nice to be able to hunt them while hunting quail. The commenter also stated that the season could be lengthened by reducing the bag limit to 12 birds, which would simplify things for law enforcement and reduce confusion with hunters. The commenter further stated that the three-bird difference would not reduce participation of the largely urban hunting population that only hunt the opening weekends. The department disagrees with the comment and responds that hunter surveys indicate a preference for a shorter season and higher bag limit in the North Zone. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Central Zone season should be identical to the North Zone season (i.e., 15-bird bag limit and no winter segment). The department disagrees with the comment and responds that hunter surveys indicate a preference for a shorter season with a higher bag limit in the North Zone and a longer season with a lower bag limit in the Central Zone. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the North Zone needs a late segment like those in the central and south zones. The department disagrees with the comment and responds that hunter preference in the North Zone is for a season without splits. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the winter segment in the Central Zone should run to the first weekend in January instead of ending on the 4^th, because the commenter hunts on property allows only weekend hunting. The department disagrees with the comment and responds that commission policy is to set the winter segment in such a fashion as to allow greater hunting opportunity during the Christmas break, when more people, especially youth, are able to take advantage of opportunity. A Central Zone survey of hunters indicates that ending the first segment before October 30 was not preferred. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Central Zone season should be implemented statewide. The department disagrees with the comment and responds that the three-zone structure of dove seasons in Texas offers the greatest opportunity for the department to select season dates that correspond to the availability of the resource and the preference of hunters. No changes were made as the result of the comment.

One commenter opposed adoption and stated that the season in the South Zone should open on a Saturday for greater participation. The department disagrees with the comments and responds that that hunter preference is for the earliest possible opener allowed under federal frameworks, which is September 1, irrespective of the day of the week it may fall on. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the South Zone should open on September 1 or that Matagorda, Wharton, and Jackson counties should be made part of the Central Zone. The department disagrees with the comment and responds that the department cannot alter the South Zone beyond the boundaries approved by the Service. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the winter segment in the South Zone should end on January 13 because children are in school and it is not worth traveling 300+ miles for just one day of hunting. The department disagrees with the comment and responds that hunter preference in the South Zone is for the earliest season possible, and that the frameworks provided by the Service do not allow sufficient days for the both the first and winter season segments to end on a Saturday this year. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the Central Zone should be eliminated. The department disagrees with the comment and responds that such a change is not possible at this time without prior approval by the Service. Central zone hunter preferences are clearly distinct from North and South Zone hunters, who have expressed a preference for a September 1 opening versus September 20 opening in the South Zone. No changes were made as a result of the comment.

One commenter opposed adoption and stated that they did not approve of the harming and killing of animals. The department disagrees with the comment and responds that it is commission policy to provide hunting opportunity

One commenter opposed adoption and stated that the early segment in the Central Zone should close the final weekend of October and the remaining two days should be added to the end of the winter segment so the season would end January 6, 2008. The department disagrees with closing the first segment on the last Sunday in October in order to end the winter season segment on a Sunday. The final complete weekend in October could end as early as October 25 and Central Zone hunters have expressed preferences for extending the season as long as possible in October. In only 1 out of 7 years would the ‘saved’ days be sufficient to extend through a complete weekend in January. No changes were made as a result of this comment.

One commenter opposed adoption and stated that the South Zone opener should be one week later or the special white wing area should be expanded to include all or at least more of the South Zone. The commenter stated that the current season is too late for the central and northern sections of the South Zone to have more than one or two weekends of decent hunting before the weather cools and the bird move south. The department disagrees with the comment and responds that hunter preference is for the earliest hunting opportunity possible, that the special white-wing dove area cannot be changed without prior approval by the Service, and that dove numbers are not dependent on the dates selected for hunting opportunity, but on various factors of the natural world that are beyond the control of the department.

One commenter opposed adoption and stated that the seasons in the North and Central zones should open September 8th and end October 30th. The department disagrees with the comment and responds that North and Central Zone hunter surveys indicate that the majority of hunters support opening the season as early as possible regardless of the day of the week that happens to fall upon. No changes were made as a result of this comment.

One commenter opposed adoption and stated that there should be a statewide season beginning September 1. The commenter stated that because of the weather at that time of year, there are only a few days of good hunting anywhere. The department disagrees with the comment and responds that the Service gives the option to open the season September 1 only for the North and Central zones. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there should be all-day hunting during the special white-wing season. The department disagrees with the comment and responds that all-day hunting during the special white-wing season is not authorized by the Service during the five years of an ongoing study to determine the impacts of extension of the boundaries of the special white-winged dove area to Interstate Highway 35. The department is currently in the third year of that study. Half-day shooting hours have been implemented because of concern for historically suppressed rural whitewing populations in the Lower Rio Grande Valley. If the five-year study reveals that mourning dove harvest has not increased relative to the harvest before the boundary expansion, the department will petition the Service to allow all day-hunting. No changes were made as a result of the comment.

Three commenters opposed adoption and stated that the boundaries of the special white-winged dove area should be reconfigured to eliminate the area where they hunt. The commenters stated that only mourning doves were present the first two complete weekends in September, and that they preferred that the four additional days be added to the end of the winter season segment. The department disagrees with the comment and responds that the special whitewing area boundary is defined in federal regulation and can’t be changed without Service approval. The Service will not approve of any regulation changes including boundary modifications until a study of the impacts of extension of this area to Interstate Highway 35 is completed. In addition, it is unknown whether the majority of hunters in this area support elimination of the special season. No changes were made as a result of these comments.

The department received 103 comments supporting adoption of the portion of the proposed rule that establish dove seasons and bag limits for dove.

The department received one comment opposing adoption of the portion of the proposed rule that establishes seasons and bag limits for gallinules. One commenter offered and explanation or rationale for opposing adoption. The commenter opposed adoption and stated that that the fewer birds killed, the better. The department disagrees with the comment and responds that both federal and state law authorizes the hunting of gallinules within sound biological limits. No changes were made as a result of the comment.

The department received 44 comments supporting adoption of the portion of the proposed amendment establishing seasons and bag limits for gallinules.
The department received three comments opposing adoption of the portion of the proposed rule that establishes seasons and bag limits for snipe. Of the three commenters, two offered a specific reason or explanation for opposing adoption. Those comments, accompanied by the department’s response to each, are as follows.

One commenter opposed adoption and stated that the season should open one month sooner. The department disagrees with the comment and responds that snipe seasons are set to overlap as much of the goose, duck, crane, rail, and gallinule seasons as possible, in order to allow concurrent hunting. No changes were made as a result of the comment.

One commenter opposed adoption and stated disapproval of hunting any bird. The department disagrees with the comment and responds that state and federal law both provide for the lawful hunting of certain species of migratory birds under the tenets of sound biological science. No changes were made as a result of the comment.

The department received 47 comments supporting adoption of the portion of the proposed rule that established seasons and bag limits for snipe.

The department received two comments opposing adoption of the proposed amendment that establishes seasons and bag limits for rail. Both commenters offered a reason or rationale for opposing adoption. Those comments, accompanied by the department’s response to each, are as follows.

One commenter opposed adoption and stated that the season should be longer. The department disagrees with the comment and responds that federal law allows a maximum season length of 107 days. No changes were made as a result of the comment.

One commenter opposed adoption and stated that that the fewer birds killed, the better. The department disagrees with the comment and responds that both federal and state law authorizes the hunting of gallinules within sound biological parameters. No changes were made as a result of the comment.

The department received 45 comments supporting adoption of the proposed amendment that establishes seasons and bag limits for rail.

The department received 13 comments opposing adoption of the portion of the proposed rule that establishes seasons and bag limits for teal. Of the 13 comments, nine commenters offered a specific reason or explanation for opposing adoption.

One commenter opposed adoption and stated that the bag limit should be reduced to three birds and the season should run from September 22-30. The department disagrees with the comment and responds that hunter preference is for the season to open as early as possible and commission policy is to allow the most liberal bag limit possible under the federal frameworks issued by the Service. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the season is too short, given the abundance of birds. The department disagrees with the comment and responds that the Service has not authorized a longer season. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the season should be longer and the bag limit should be five or six birds. The department disagrees with the comment and responds that the bag limit for teal is the maximum allowed under federal frameworks issued by the Service. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the bag limit should be five birds. The department disagrees with the comment and responds that the bag limit for teal is the maximum allowed under federal frameworks issued by the Service. No changes were made as a result of the comment.

Three commenters opposed adoption and stated that the bag limit should be five birds. The department disagrees with the comment and responds that the bag limit for teal is the maximum allowed under federal frameworks issued by the Service. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the bag limit should be six birds.
The department disagrees with the comment and responds that the bag limit for teal is the maximum allowed under federal frameworks issued by the Service. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the season should begin second Saturday in September because the migration occurs then. The department disagrees with the comment and responds that hunter preference is for the season to open as early as possible. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the lower the bag limit the better. The department disagrees with the comment and responds that commission policy is to adopt the most liberal bag limits allowed under the frameworks issued by the Service. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the teal limit should be raised because the total population continues to rise well above the long term average, the vast majority of blue wing are harvested during the early teal season, and the early season can be used to effectively manage this species. The commenter also stated that the total number of blue wing harvested in Texas is insignificant when the overall population is considered. The department disagrees with the comment and responds that the bag limit for teal is the maximum allowed under federal frameworks issued by the Service. No changes were made as a result of the comment.

The department received 113 comments supporting adoption of the portion of the rule affecting seasons and bag limits for teal.

5. Statutory Authority.

The repeal is adopted 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.

§65.310. Means, Methods, and Special Requirements.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority.

Issued in Austin, Texas, on

The amendments and new sections are adopted 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.

§65.301. Applicability.

(a) No person shall at any time, by any means, or in any manner hunt, possess, transport, or transfer any migratory game bird except as provided in this subchapter.

(b) No provision of this subchapter shall be construed to relieve a person from the restrictions, conditions, and requirements of federal regulations contained in 50 Code of Federal Regulations (CFR) Part 20.

§65.309. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation).

(1) Baited area—Any area where salt, grain, or other feed has been placed, exposed, deposited, distributed, or scattered, if that salt, grain, or other feed could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them. Any such area will remain a baited area for ten days following the complete removal of all such salt, grain, or other feed.

(2) Baiting—The direct or indirect placing, exposing, depositing, distributing, or scattering of salt, grain, or other feed that could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them.

(3) Daily bag limit — The quantity of a species of migratory game bird that may be lawfully taken in one day

(4) Day — A 24-hour period of time that begins at midnight and ends at midnight.

(5) Dark geese — Canada, white-fronted, and all other geese except light geese.

(6) Harvest Information Program (HIP) — A mandatory certification process for all persons who hunt or intend to hunt migratory game birds. To be certified, a person must answer a series of questions about their migratory game-bird hunting habits.

(7) Legal shotgun — A shotgun not larger than 10 gauge, fired from the shoulder, and incapable of holding more than three shells. (Guns capable of holding more than three shells must be plugged with a one-piece filler which is incapable of removal without disassembling the gun, so the gun's total capacity does not exceed three shells.)

(8) Light geese — Snow, blue, and Ross' geese.

(9) Livestock — Cattle, horses, mules, sheep, goats, and hogs.

(10) Manipulation — The alteration of natural vegetation or agricultural crops, including but not limited to mowing, shredding, discing, rolling, chopping, trampling, flattening, burning, and herbicide treatments. Manipulation does not include the distributing or scattering of grain, seed, or other feed after removal from or storage on the field where grown.

(11) Migratory bird preservation facility — A stationary facility designed and constructed to store or process game animals and game birds. For the purposes of this subchapter, a migratory bird preservation facility is a cold storage or processing facility as defined by Parks and Wildlife Code, §42.001.

(12) Natural vegetation — Any non-agricultural, native, or naturalized plant species that grows at a site in response to planting or from existing seeds or propagule. Natural vegetation does not include planted millet. However, planted millet that grows on its own in subsequent years after the planting is considered natural vegetation.

(13) Nontoxic shot—Any shot approved by the director, U.S. Fish and Wildlife Service.

(14) Normal agricultural practice — A normal agricultural planting, harvesting, or post-harvest manipulation, or livestock feeding conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.

(15) Normal soil stabilization practice — a planting for agricultural soil erosion control or post-mining land reclamation conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.

(16) Paraplegic — An individual afflicted with paralysis of the lower half of the body with involvement of both legs, usually due to disease of or injury to the spinal cord.

(17) Possession limit—The maximum number of a species of migratory game bird that may be lawfully possessed at one time.

(18) Personal residence (personal abode) —One's principal or ordinary home or dwelling place. The term does not include a temporary or transient place of residence or dwelling such as a hunting club, or any club house, cabin, tent, or trailer house used as a hunting club, or any hotel, motel, or rooming house used during a hunting, pleasure, or business trip.

(19) Sinkbox—Any type of low floating device having a depression which affords the hunter a means of concealing himself below the surface of water.

(20) Waterfowl — ducks (including teal), geese, mergansers, and coots.

§65.310. Means and Methods. Migratory birds may be taken by any method except those prohibited in this section. Except as provided in this subchapter, no person shall take migratory game birds:

(1) with a trap, snare, net, any type of rifle or pistol (including airguns), swivel gun, shotgun larger than 10 gauge, punt gun, battery gun, machinegun, fish hook, poison, drug, explosive, or stupefying substance;

(2) with a shotgun of any description capable of holding more than

three shells, unless it is plugged with a one-piece filler, incapable of removal without disassembling the gun, so its total capacity does not exceed three shells;

(3) from or by means, aid, or use of a sinkbox or any other type of low-floating device, having a depression affording the hunter a means of concealment beneath the surface of the water;

(4) from or by means, aid, or use of any motor vehicle, motor-driven land conveyance, or aircraft of any kind, except that paraplegics and persons missing one or both legs may take from any stationary motor vehicle or stationary motor-driven land conveyance;

(5) from or by means of any motorboat or other craft having a motor attached, or any sailboat, unless the motor has been completely shut off and/or the sails furled, and its progress therefrom has ceased. A craft under power may be used to retrieve dead or crippled birds; however, crippled birds may not be shot from such craft under power;

(6) by the use or aid of live birds as decoys;

(7) where tame or captive live ducks or geese are present unless such birds are and have been for a period of 10 consecutive days prior to such taking, confined within an enclosure which substantially reduces the audibility of their calls and totally conceals such birds from the sight of wild migratory waterfowl;

(8) by the use or aid of recorded or electrically amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds;

(9) by means or aid of any motor-driven land, water, or air conveyance, or any sailboat used for the purpose of or resulting in the concentrating, driving, rallying, or stirring up of any migratory bird;

(10) by the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited. No person may place or direct the placement of bait on or adjacent to an area for the purpose of causing, inducing, or allowing any person to take or attempt to take any migratory game bird by the aid of baiting on or over the baited area. However, provided a land or area is not otherwise baited, nothing in this paragraph prohibits:

(A) the taking of any migratory game bird, including waterfowl, coots, and cranes on or over:

(i) standing crops or flooded standing crops (including aquatics);

(ii) standing, flooded, or manipulated natural vegetation;

(iii) flooded harvested croplands; or

(iv) lands or areas where seeds or grains have been scattered solely as the result of a normal agricultural planting, harvesting, post-harvest manipulation or normal soil stabilization practice;

(v) from a blind or other place of concealment camouflaged with natural vegetation;

(vi) from a blind or other place of concealment camouflaged with vegetation from agricultural crops, as long as such camouflaging does not result in the exposing, depositing, distributing or scattering of grain or other feed; or

(vii) on or over standing or flooded standing agricultural crops where grain is inadvertently scattered solely as a result of a hunter entering or exiting a hunting area, placing decoys, or retrieving downed birds; or

(B) the taking of any migratory game bird, except waterfowl, coots and cranes, on or over lands or areas that are not otherwise baited areas, and where grain or other feed has been distributed or scattered solely as the result of manipulation of an agricultural crop or other feed on the land where grown, or solely as the result of a normal agricultural operation; or

(11) while possessing loose shot that is not non-toxic shot or shotshells containing any shot other than non-toxic shot.

§65.312. Possession of Migratory Game Birds.

(a) For all migratory birds taken for which there is a possession limit, the possession limit shall apply until the birds have reached the personal residence of the possessor and are finally processed.

(b) A person may give, leave, receive, or possess any species of legally taken migratory game birds, or parts of birds, that are protected by a bag or possession limit, if the birds are accompanied by a wildlife resource document (WRD) from the person who killed the birds. For example, a WRD is required if the birds are being transported by another person for the hunter, or if the birds have been left for cleaning, storage (including temporary storage), shipment, or taxidermy services. The WRD is not required of a person who lawfully killed the birds to possess the birds, or if the birds are transferred at the personal residence of the donor or donee. If the birds have been finally processed at a cold storage or processing facility and a person transports more than a legal possession limit, then a WRD must accompany the birds in excess of the possession limit until they reach the permanent residence of the possessor. A properly executed WRD satisfies the tagging requirements of 50 CFR Part 20. Except as provided in this subsection, a WRD shall accompany the birds until the birds reach their final destination and must contain the following information:

(1) the name, signature, address, and hunting license number of the person who killed the birds;

(2) the name of the person receiving the birds;

(3) the number and species of birds or parts;

(4) the date the birds were killed; and

(5) the location where the birds were killed (e.g., name of ranch; area; lake, bay, or stream; county).

(c) No person may:

(1) take or have in possession more than the bag and possession limits of each species of migratory game birds except as provided in this section;

(2) possess migratory game birds on the opening day of the season in excess of the applicable daily bag limit;

(3) possess more than one daily bag limit of freshly killed migratory game birds while in the field or while returning from the field to one's hunting camp, automobile or other motor driven land conveyance, aircraft, temporary lodging facility, personal residence, or cold storage or processing facility; or

(4) possess freshly killed migratory game birds during the closed season.

§65.313. General Rules.

(a) No person shall hunt migratory game birds except during the open season as provided herein, or at any time except during the hours as provided herein. All dates are inclusive.

(b) Shooting hours for migratory game birds are from one-half hour before sunrise to sunset, except during the special white-winged dove season. In the special white-winged dove zone during the special white-winged dove season, shooting hours are from noon to sunset.

(c) No person shall hunt migratory game birds in this state unless that person is certified in the Harvest Information Program.

(d) Every migratory game bird wounded by hunting and reduced to possession by a hunter shall be immediately killed and become a part of the daily bag limit.

(e) The provisions of 50 CFR Part 20, Subparts E, F, G, and H in effect on September 1, 2007 are adopted by reference.

(f) The executive director may, after notifying the Chairman of the Commission, authorize any rulemaking necessary to modify the provisions of this subchapter.

§65.315 Open Seasons and Bag and Possession Limits—Early Season.

(a) Rails.

(1) Dates: September 15 — 30, 2007 and November 3 — December 26, 2007.

(2) Daily bag and possession limits:

(A) king and clapper rails: 15 in the aggregate per day; 30 in the aggregate in possession.

(B) sora and Virginia rails: 25 in the aggregate per day; 25 in the aggregate in possession.

(b) Dove seasons.

(1) North Zone.

(A) Dates: September 1 — October 30, 2007.

(B) Daily bag limit: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 30 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(2) Central Zone.

(A) Dates: September 1 — October 30, 2007 and December 26, 2007-January 4, 2008.

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(3) South Zone.

(A) Dates: Except in the special white-winged dove area as defined in §65.314 of this title (relating to Zones and Boundaries for Early Season Species), September 21 — November 11, 2007 and December 26, 2007 — January 12, 2008.

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(4) Special white-winged dove area.

(A) Dates: September 1, 2, 8, and 9, 2007.

(i) Daily bag limit: 12 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than four mourning doves and two white-tipped doves per day;

(ii) Possession limit: 24 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than eight mourning doves and four white-tipped doves in possession.

(B) Dates: September 21 — November 11, 2007 and December 26, 2007 — January 8, 2008.

(i) Daily bag limit: 12 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than two white-tipped doves per day;

(ii) Possession limit: 24 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than four white-tipped doves in possession.

(c) Gallinules.

(1) Dates: September 15 — 30, 2007 and November 3 — December 26, 2007.

(2) Daily bag and possession limits: 15 in the aggregate per day; 30 in the aggregate in possession.

(d) September teal-only season.

(1) Dates:

(A) High Plains Mallard Management Unit: September 15 — 23, 2007.

(B) Remainder of the state: September 15-30, 2007.

(2) Daily bag and possession limits: four in the aggregate per day; eight in the aggregate in possession.

(e) Red-billed pigeons, and band-tailed pigeons. No open season.

(f) Shorebirds. No open season.

(g) Woodcock: December 18, 2007 — January 31, 2008. The daily bag limit is three. The possession limit is six.

(h) Wilson's snipe (Common snipe): November 3, 2007 — February 17, 2008. The daily bag limit is eight. The possession limit is 16.

§65.319. Extended Falconry Season—Early Season Species.

(a) 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) mourning doves and white-winged doves: November 19 — December 25, 2007.

(2) rails and gallinules: December 27, 2007 — February 1, 2008.

(3) woodcock: November 24 — December 17, 2007.

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority.

Issued in Austin, Texas, on