Commission Agenda Item No. 12
Action
Deer Management Permit Rules
Trap, Transport, and Transplant Rules
May 24, 2007

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.131 and 65.134-65.136, concerning Deer Management Permits (DMP).

The proposed amendment to §65.131, concerning Deer Management Permit (DMP), would eliminate current subsection (d) and alter the composition of the review panel provided for by current subsection (e). Current subsection (d) provides that changes to an existing deer management plan are to be treated as a new application. The subsection is being eliminated because another facet of this rulemaking proposes to provide a consistent application process and fee for new applications and renewals. Therefore, subsection (d) is no longer necessary.

Current §65.131(e) provides that an applicant for a permit may request a review of an agency decision to deny or delay permit issuance. The review panel is composed of agency managers. The proposed amendment would add the Deputy Director of Operations (or his or her designee) to the review panel and remove “the Regional Director with jurisdiction” and the “White-tailed Deer or Mule Deer program leader.” The change is necessary to include senior management in any situation calling for a review and provide consistency with other review panels associated with deer permits.

The proposed amendment to §65.134, concerning Facility Standards, would clarify that the maximum number of bucks and does that may be kept in a DMP pen does not include fawns born in the pen during the permit year. The provisions of current subsection (c) allow no more than one buck and 20 does to be kept in a pen between September 1 and January 31. Those dates were selected because other provisions of the subchapter prohibit the addition of deer between March 2 and January 31 and require that all deer in a DMP be released by August 31. In essence, the current regulation specifies the maximum number of deer that may be in a DMP pen during the time it is lawful to confine deer in a DMP pen. The proposed amendment simplifies and clarifies the provisions of the subsection by stating declaratively that a DMP pen may contain no more than one buck and 20 does at any time, exclusive of fawns born in the pen during the permit year.

The proposed amendment to §65.135, concerning Detention and Marking of Deer, would lengthen the period of time when it is unlawful to trap deer from the wild under a DMP and eliminate the requirement that deer within a DMP be ear-tagged.

Under current §65.135(a), deer may not be trapped between March 2 and August 31. The proposed amendment would extend the prohibition to the period from December 15 to August 31. The intent of the rule is to prevent the trapping of pregnant does, since the purpose of the subchapter is to authorize the trapping of wild does for breeding purposes. Department data indicate that by December 15 there is a high probability that pregnant does will be trapped. The proposed amendment is necessary to ensure that the intent and integrity of the program is maintained.

Under current §65.135(b), adult deer within a DMP facility must be ear-tagged. The department has determined that tagging is not necessary and has little value to the agency. Therefore, the provision is being eliminated. A DMP holder is not prohibited from marking deer that are legally detained under a permit. The proposed amendment is necessary to simplify the rules.

The proposed amendment to §65.136, concerning Release, would reduce the minimum footage of fencing that must be removed during release operations, allow multiple openings of at least 10 feet, and shorten the time that containment features must be removed in order to effect release of DMP deer. The provisions of the current rule allow for the use of release techniques that would otherwise be prohibited, provided they are approved by the department on a case-by-case basis. Since the inception of the permit in 1998, the department has approved numerous exceptions to the provisions of the section. In reviewing the exceptions to the rule, the department has determined that more flexible standards can be safely implemented. The proposed amendment also would eliminate the provision for case-by-case approval of release techniques, as the department does not intend to approve any release techniques other than what is allowed by rule. The department has also determined that the current requirement that fences remain down for a period of 60 days may be safely shortened to 30 days. The proposed amendment is necessary to allow for the liberation of deer after fawning season but with time to apply for a new permit in time to be ready for the trapping season, which begins September 1. The proposed amendment would also clarify that the provisions mandating the removal of supplemental food and water apply in the DMP pens at the time deer are released. The current wording of the provision does not make that clear. The proposed amendment also clarifies that deer must be released in the pasture where they were originally captured, except for deer that the department has authorized for release elsewhere under a permit to trap, transport, and transplant game animals and game birds. The department wishes to make it clear that deer may not be released into a small enclosure or trap but must be released back into the same pasture or acreage that the deer management plan specified for the capture of the deer.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be greater efficiency in program administration and clearer and more user-friendly regulations.

(B) There will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendments as proposed.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

(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 rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter R, which authorizes the commission to issue a permit for the management of the wild white-tailed deer population on acreage enclosed by a fence capable of retaining white-tailed deer, subject to conditions established by the commission.

The proposed amendments affect Parks and Wildlife Code, Chapter 43.

§65.131. Deer Management Permit (DMP).

(a) The department may issue a Deer Management Permit to a person who has met the requirements of §65.132 of this title (relating to Permit Application).

(b) A person who possesses a valid Deer Management Permit may trap and detain wild deer according to the provisions of this subchapter and Parks and Wildlife Code, Chapter 43, Subchapter R. A permittee shall abide by the terms of an approved deer management plan.

(c) The provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, and L do not apply to deer lawfully being held in possession under authority of a valid DMP.

[(d) Changes to an approved Deer Management Plan shall be considered as a new application, unless the changes are necessary to comply with regulatory or statutory requirements implemented after the deer management plan was approved.]

(d)[(e)] An applicant for a permit under this subchapter may request that a decision by the department to deny issuance or delay processing of a permit or permit renewal be reviewed.

(1) An applicant seeking review of a decision of the department under this subsection shall contact the department within 10 working days of being notified by the department of permit denial.

(2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for a review.

(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

(A) the Deputy Executive Director for Operations (or his or her designee);

(B)[(A)] the Director of the Wildlife Division; and

[(B) the Regional Director with jurisdiction;]

(C) the Big Game Program Director [;and]

[(D) the White-tailed Deer Program Leader].

(4) The decision of the review panel is final.

(5) The department shall report on an annual basis to the White-tailed Deer Advisory Committee the number and disposition of all reviews under this subsection.

§65.134. Facility Standards.

(a) No pen used to detain deer under a DMP shall be more than 100 acres in area or less than five acres in area, except as provided in subsection (b) of this section.

(b) A pen less than five acres in area must contain at least 50,000 square feet of continuous natural vegetation of the type typically used by white-tailed deer for concealment and cover.

(c) Except for fawns born in a DMP facility during the current permit year, [During the period from September 1 through January 31,] no pen at any time shall contain more than:

(1) one buck deer; and/or

(2) 20 doe deer.

§65.135. Detention [and Marking] of Deer.

[(a)] No trapping of deer under a DMP may take place between December 15[March 2] and August 31 of any year.

[(b) Each deer detained under a DMP shall be marked by securely attaching a tag constructed of durable material to one ear. The tag must be of a size and color that is clearly visible from a distance of 50 feet. For the purposes of this subsection, 'durable material' means material that is not likely to disintegrate, decompose, or be easily dislodged or removed.]

§65.136. Release.

(a) Release of deer shall be effected by removing, for a total of at least 20 feet,[for a continuous distance of no less than 100 yards,] those components of a pen that serve to maintain deer in a state of detention within the pen; however, no opening shall be less than 10 feet in width. Such components shall be removed for no fewer than (30)[60] consecutive days. [The provisions of this subsection may be altered, provided the specific details of the release technique are included in the applicant's deer management plan and are approved by the department.]

(b) At any time that components of a pen are removed or manipulated for the purposes of releasing wild deer, all[All] externally provided food and water (i.e., food or water that does not naturally occur at the site) shall be removed or made inaccessible to deer for no fewer than (30)[60] days.

(c) All deer within a DMP pen shall be released on or before August 31 of each year.

(d) Except for deer authorized by the department for release elsewhere under a permit to trap, transport, and transplant game animals and game birds, all deer released from a DMP pen shall be released directly into the pasture where they were captured for the purposes of activities under this subchapter.

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 proposes an amendment to §65.107, concerning Permit Application and Processing.

The proposed amendment would require to an applicant to pay a fee for each release site named on a single Permit to Trap, Transport, and Transplant Game Animals and Game Birds (popularly referred to as “Triple T” permits) and alter the composition of the review panel provided for by subsection (b). The proposed amendment also corrects the title of one of the permits in subsection (a)(2) inserting the word “deer.”

Under current §65.107(a), an applicant may specify multiple trap and release sites on a single application for a Triple T permit. The department has determined that the current method of permit administration is not cost effective. In Fiscal Year 2006, the department issued 75 Triple T permits authorizing trapping activities at 63 sites and release activities at 163 sites. The department incurred costs of approximately $120,830 to process applications, perform site inspections, observe and enforce compliance, and prosecute violations of Triple T regulations; however, revenue from permit fees during the same time period was $13,500.

Under Parks and Wildlife Code, §43.061, the state may not incur any expense for the trapping, transporting, and transplanting of game animals and game birds under a Triple T permit. Therefore, the department must increase the fee in order to recoup the expense to the state. The department has proposed the actual fee increase in another proposed rulemaking published elsewhere in this issue, although a discussion of the fee is included in this preamble as a courtesy.

Current §65.107(b) provides that an applicant for a permit may request a review of an agency decision to deny or delay permit issuance. The review panel is composed of agency managers. The proposed amendment would add the Deputy Director of Operations (or his or her designee) to the review panel and remove “the Regional Director with jurisdiction” and the “White-tailed Deer or Mule Deer program leader.” The change is necessary to include senior management in any situation calling for a review and provide consistency with other review panels associated with deer permits.

2. Fiscal Note.

Mr. Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. Note: This fiscal note also appears as part of the proposed amendment to §53.14, which is published elsewhere in this issue. The department reproduces it here as a courtesy to the regulated community. The department also estimates that there will be additional revenue of approximately $112,500 per year as a result of enforcing or administering the proposed rule with respect to Triple T permits. This estimate was obtained by taking the average number of release sites authorized over each of the last three years (150) and multiplying it by the proposed fee ($750).

There will be no fiscal implications for other units of state or local governments as a result of administering or enforcing the rule as proposed.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be greater efficiency in program administration and clearer and more user-friendly regulations.

(B) There may be an adverse economic effect on small businesses, microbusinesses, and persons required to comply with the amendment as proposed. Government Code, Chapter 2006, defines small and micro-businesses as entities “formed for the purpose of making a profit.” Tex. Gov’t Code §2006.00(1)(A), (2)(A). DMP and Triple T permits are issued to individuals, rather than to entities. Some, but not all, individuals participate in activities covered by a DMP or a Triple T permit in an effort to enhance profit generating hunting operations. To the extent that such operations are considered small or microbusinesses, the following impact analysis is provided.

Each Triple T permittee will incur a direct additional cost of $570 per permit if the permittee lists only one release site. Some of the businesses affected will be small or microbusinesses. If a business employed one employee, the cost of compliance would be $570 per employee. If a business employed 20 employees, the cost of compliance would be $28.50 per employee. If a business employed 100 employees, the cost of compliance would be $5.70 per employee.

In addition, the proposed rule requires an additional cost of $750 for each release site listed on the permit. Therefore, for each additional release site, the cost of compliance will increase by $750 per employee for a business that employs only one employee, by $37.50 per employee for a business that employs 20 employees and by $7.50 per employee for a business that employs 100 employees. However, there is no difference in the cost of compliance between the largest business affected by the rule and the smallest business affected by the rule. Similarly, there is no disproportionate economic impact on small or microbusinesses. TPWD is not aware of a performance-oriented, voluntary, or market-based approach that would substitute for the proposed amendment.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

(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. Summary of Public Comment.

Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, §43.061, which requires the commission shall adopt rules for the trapping, transporting, and transplanting of game animals and game birds and authorizes the commission to set fees for review of permit applications or other department actions necessary to implement the provisions of §43.601.

The proposed amendments affect Parks and Wildlife Code, Chapter 43.

§65.107. Permit Application and Processing.

(a) Permit applications.

(1) Application for permits authorized under this subchapter shall be on a form prescribed by the department.

(2) A single application for a Trap, Transport, and Transplant Permit may specify multiple trap and/or release sites; however, the permit fee prescribed by Chapter 53 of this title shall be assessed on a per-release site basis.

(3) A single application for [or] an Urban White-tailed Deer Removal Permit may specify multiple trap and/or release sites. A single application for a Trap, Transport, and Process Surplus White-tailed Deer Permit may specify multiple trap sites and/or processing facilities.

(4)[(3)] A single application may not specify multiple species of game birds and/or game animals.

(5)[(4)] The application must be signed by:

(A) the applicant;

(B) the landowner or agent of the trap site(s); and

(C) the landowner or agent of the release site(s) or the owner or agent of the processing facility or facilities.

(6)[(5)] The applicant may designate certain persons and/or companies that will be involved in the permitted activities, including direct handling, transport and release of game animals or game birds. In the absence of the permittee, at least one of the named persons and/or companies shall be present during the permitted activities.

(b) Review. An applicant for a permit under this subchapter may request a review of a decision of the department to deny issuance or delay processing of a permit.

(1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.

(2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review.

(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

(A) the Deputy Executive Director for Operations, or his or her designee;

(B)[(A)] the Director of the Wildlife Division; and

[(B) the Regional Director and District Leader with jurisdiction;]

(C) the Big Game Program Director[; and]

[(D) the White-tailed Deer or Mule Deer program leader, as appropriate].

(4) The decision of the review panel is final.

(5) The department shall report on an annual basis to the White-tailed Deer Advisory Committee the number and disposition of all reviews under this subsection.

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