Proposed Rule - Special Authorization for the Take of White-tailed and Mule Deer for Disease Management

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DISEASE MANAGEMENT RULES

SPECIAL TAKE AUTHORIZATION RULES

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes new 31 TAC §65.907, concerning Special Take Authorization – White-tailed and Mule Deer.

        The proposed new section would create provisions governing the take of white-tailed or mule deer by landowners and their agents as authorized by the department when necessary to aid or assist the department’s efforts to respond to chronic wasting disease (CWD).

        The Texas Legislature during the most recent regular session passed House Bill 3065, which allows the take of wildlife by persons authorized by the department to do so “as part of a program or event designated by the executive director as being conducted for the diagnosis, management, or prevention of a disease in wildlife.” The proposed rule would set forth a carefully controlled and highly regulated process under which the department would authorize persons not employed by the department to take native deer as part of department-sponsored research and management activities. Prior to the passage of H.B. 3065, if the take of a species of wildlife was regulated by a season, time of day, bag limit, or means established by the commission, only department employees or academics conducting activities under a research permit could take such wildlife in contravention of those limitations. The emergence and spread of CWD from deer breeding facilities to release sites has presented a unique challenge to the department, in terms of being able to facilitate the quick identification and removal of “trace deer” (deer that at some point were in a deer breeding facility where CWD was subsequently detected (positive facility) or that have become epidemiologically linked to a positive facility) at locations that have received deer from deer breeding facilities. The more expeditiously trace deer can be removed from the landscape and tested, the less likely it is that the deer, if infected with CWD, will have been able to infect additional animals or shed infectious prions at the release site. Additionally, such activities add to the department’s understanding of the nature of CWD, its transmission, progression, and presence in the environment. Thus, if a release site becomes epidemiologically linked to a positive facility at a time of year when hunting is not lawful, there was no mechanism for the department to authorize persons not employed by the department to take deer to assist the department in disease management and research. The department also could use this authority to conduct epidemiological investigations at locations that were not release sites for breeder deer, as part of broader sampling and monitoring efforts.

        The activities of a special take authorization are not recreational hunting or traditional wildlife management, they are part of the department’s management efforts to study and control CWD. Therefore, the provisions of the rules contain strict provisions to eliminate any possible confusion on the part of the public or persons involved with respect to the purpose or intent of a special take authorization.

        Proposed new subsection (a) would set forth the application and issuance process for special take authorizations, to include a site inspection (if deemed necessary by the department) and a stipulation that special take authorizations will be issued to named individuals only, and not to a corporation, association, or group. The department issues permits and licenses to named individuals only because it facilitates enforcement and compliance.

        Proposed new subsection (b) would condition the validity of a special take authorization upon the recipient’s acknowledgement, in writing, that he or she and any authorized agents have read and understand all provisions and conditions of the special take authorization. By obtaining written acknowledgment that a person to whom a special take authorization is issued (including any authorized agents) understands the rules and the conditions under which the activity is being authorized, the possibility of confusion, misunderstanding or disagreement will be reduced. The proposed new subsection would also include a provision conditioning the validity of a special take authorization on the approval of the director of the department’s law enforcement division, or designee, and the director of the department’s wildlife division, or designee.

        Proposed new subsection (c) would stipulate that a special take authorization will identify the specific deer or number of deer to be removed for testing. Trace deer, because they were breeder deer exposed to CWD prior to release, are of primary importance in an epidemiological investigation; however, if all or some trace deer cannot be located it is necessary to post-mortem test additional free-ranging non-trace deer for CWD to develop an indication of whether CWD has been spread to the release site and if so, the disease prevalence. Therefore, a special take authorization would identify specific trace deer and/or a number of other deer to be removed for testing.

        Proposed new subsection (d) would provide for the times, places, means, methods, and other measures to be stipulated in a special take authorization. The rule as proposed would impose limitations on the means and times of take to reduce wounding loss while still providing an efficient path for the removal of deer from the landscape; however, the high variability of geography and habitat across the state could make it necessary in some cases to authorize extraordinary means to quickly locate and dispatch deer. The proposed new subsection would stipulate that the activities authorized under a special take authorization must be conducted only by the person to whom the special take authorization is issued and any persons named in the special take authorization as agents. As noted previously, because the threat of CWD to indigenous deer populations creates a need to remove trace deer or other deer of epidemiological interest from the landscape quickly, the rules as proposed would allow activities that are otherwise unlawful. To ensure that those activities are conducted appropriately, the department believes it is necessary to identify every person who would be involved.

        Proposed new subsection (e) would establish an initial period of validity of 14 days for persons to whom a special take authorization is issued to remove the deer identified in the authorization. The proposed new subsection also would provide for extensions of validity in situations where specific deer cannot be located.

        Proposed new subsection (f) would stipulate the types of tissue samples to be collected and submitted under a special take authorization, require the submission of any identifying tags, and prescribe deadlines for the submission of those items. The department believes that prompt submission of properly collected and identified, epidemiologically valuable materials is crucial to the department’s ability to determine disease prevalence, if any, at a release site or other location.

        Proposed new subsection (g) would stipulate that the owner of any tract of land where prospective special take authorization activities are to take place be in compliance with all applicable provisions of the Chapter 65, Subchapter A and Subchapter B as a condition of issuance of a special take authorization for the property, unless the department determines that the disease management value of the prospective activities warrants approval. Under current rule, a release site that is epidemiologically connected to a positive deer breeding facility is prohibited from receiving additional deer until the department has determined that CWD has not been spread to or at that location. The department believes that any person who is not compliant with applicable rules governing surveillance at release sites should not be able to obtain a benefit from the issuance of a special take authorization, unless it is in the interests of protecting a public resource to do so.

        Proposed new subsection (h) would require the recipient of a special take authorization to notify the department within 24 hours of take of each deer taken under the special take authorization, which is necessary for the department to accurately and timely monitor authorized activities.

        Proposed new subsection (i) would prescribe disposal methods for carcasses of deer taken under a special take authorization. Because carcasses of deer taken from a location where the department believes CWD could be present have the potential to be infectious and because there is an amount of time between take and the receipt of test results, the department believes it prudent to prescribe carcass disposal requirements to minimize infectivity of carcasses. The proposed rule would therefore require carcasses to be disposed of by burial at a depth of at least three feet below ground level on the property where the take occurred, delivery to a landfill authorized by the Texas Commission on Environmental Quality to receive such wastes; or as otherwise directed by the department in the special take authorization.

        Proposed new subsection (j) would condition the issuance of a special take authorization on the applicant’s agreement in writing not to record by means of video, photograph, or other electronic media the act of taking or attempting to take deer under a special take authorization, or to allow such recordings, or to make such recordings available to the public. As mentioned previously in this preamble, the department intends for the rules to function solely as a means to assist the department in disease management, research, and prevention and does not intend for the rules to provide any kind of opportunity for commercial or entertainment exploitation.

        Proposed new subsection (k) would, for purposes of explicit clarification and emphasis, provide that nothing in the rules is to be construed to relieve any person of the obligation to comply with any applicable municipal, county, state, or federal law, except as may be specifically authorized with respect to Parks and Wildlife Code and the regulations of the commission.

        Proposed new subsection (l) would explicitly identify acts that the department considers serious enough to warn the recipients of special take authorizations not to engage in.

        Proposed new subsection (m) would condition the validity of a special take authorization on the conduct of the person to whom the special take authorization is issued and agents of that person and provide that failure to abide by or comply with any provision of a special take authorization, as determined by the department, automatically invalidates the authorization and subjects the violator to prosecution for applicable violations of Parks and Wildlife Code, Chapters 42, 43, 61, 62, or 63 and any department regulations related to the take of deer. The department believes that it is imperative for the public to be assured that non-recreational take of a public resource is taken by the department as a serious matter, and that persons who exhibit reckless, intentional, or negligent disregard for that resource should be held to account.

2. Fiscal Note.

        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 no fiscal implications to the department or other units of state government as a result of administering the rule, as there will likely be few special take authorizations issued and department employees will administer and enforce the rule as part of currently budgeted and appropriated job duties.

        There will be no fiscal implications on persons required to comply with the rule as proposed, as the decision to apply for and execute activities under a special take authorization is completely voluntary, no person is required under any provision of current law to obtain a special take authorization, and deer can still be removed by lawful hunting during an open season.

3. Public Benefit/Cost Note.

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

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be mitigating the spread of CWD.

                 (B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that because the rule as proposed does not directly regulate any small business, microbusiness, or rural community, there will be no adverse economic impact on small businesses, microbusinesses, or rural communities as a result of the proposed rule.

                 (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 rule as proposed will not impact local economies.

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

                 (E) 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 rule.

                 (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                         (1) neither create nor eliminate a government program;

                         (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                         (3) not result in a need for additional General Revenue funding;

                         (4) not affect the amount of a fee;

                         (5) create a new regulation (to implement a process for persons to remove protected wildlife under department supervision to support department disease management efforts);

                         (6) not expand an existing regulation;

                         (7) neither increase nor decrease the number of individuals subject to regulation; and

                         (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Assistant Commander Stormy King, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4853; email: stormy.king@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The new rule is proposed under Parks and Wildlife Code, §12.013, which authorizes the commission to adopt rules governing the take of wildlife under the supervision of a department employee in a program or event designated by the director as being conducted for the diagnosis, management, or prevention of a disease in wildlife.

        The proposed new rule affects Parks and Wildlife Code, Chapter 12.

6. Rule Text.

        §65.907. Special Take Authorization – White-tailed and Mule Deer.

                 (a) The department may issue a special take authorization for the take of white-tailed or mule deer (hereinafter, “deer”) for purposes of assisting the department in conducting wildlife disease diagnosis, management, or prevention (hereinafter, “special take authorization”), as provided in this subsection. A person may request a special take authorization by completing and submitting an application on a form supplied or approved by the department for that purpose. 

                         (1) The department will not consider an incomplete application for a special take authorization.

                         (2) The department may, at its discretion, conduct a site inspection as a condition of issuance of a special take authorization.

                         (3) A special take authorization shall be issued only to a named individual and not in the name of any corporation, business, association, or group.

                 (b) A special take authorization is not valid until:

                         (1) the applicant has acknowledged, in writing via email to the department employee identified as the supervisory point of contact, that the applicant and all agents of the applicant have read and understand all:

                                  (A) provisions of the special take authorization; and

                                  (B) all attendant obligations of the person to whom the special take authorization is issued and that person’s agents; and

                         (2) it has been approved in writing by the director of the department’s Wildlife Division or designee and the director of the department’s Law Enforcement Division or designee.

                 (c) A special take authorization shall specify the number and type of deer to be taken. No deer other than the specified deer or number of deer authorized for take shall be taken.

                 (d) The take of deer under a special take authorization shall be:

                         (1) performed only by the person to whom the special take authorization is issued and/or persons identified by name on the special take authorization as agents of the person to whom the special take authorization is issued;

                         (2) by firearm using centerfire ammunition only;

                         (3) conducted during the time between 30 minutes before sunrise and 30 minutes after sunset, unless specifically authorized in writing by the department; or

                         (4) any other method of take as may be authorized by the department to remove specific deer.

                 (e) A special take authorization is valid for 14 days from the date specified in the special take authorization. The department may extend the period of validity based on extenuating or unavoidable circumstances (including inability to locate specific deer); however, a request for extension must be submitted to the department via email and approved by the department prior to the take of deer. A copy of the special take authorization or a reproduction of the special take authorization on an electronic device (such as a cell phone or tablet) shall be produced upon request of a department employee in the discharge of their official duties.   A copy of the email from the department granting an extension of a special take authorization or a reproduction of that email on an electronic device (such as a cell phone or tablet) shall be produced upon request of a department employee in the discharge of their official duties. 

                 (f) For each deer taken under a special take authorization, the following must be submitted to the Texas A&M Veterinary Medical Diagnostic Laboratory:

                         (1) the whole head, accompanied by all visible forms of identification borne by the deer at the time the deer was taken, including but not limited to ear tags, tattoos, RFID tags, or any other forms of identification; 

                         (2) the medial retropharyngeal lymph nodes (MRLN), which must be collected by an accredited veterinarian, authorized department employee, or TAHC-certified CWD sample collector; and

                         (3) any other tissue samples, as directed by the department.

                         (4) A properly executed TVMDL accession form must accompany the head or tissue samples submitted under the requirements of this subsection. 

                         (5) All tissue samples and body parts required to be submitted under this subsection must be submitted to TVMDL within two business days of completion of removal of all deer or within two business days upon conclusion of the last authorized collection date, whichever is sooner.

                         (6) It is an offense to remove an ear tag or deface or remove a tattoo prior to submission of deer head under this subsection. 

                     (g) The department will not issue a special take authorization for the take of deer on any tract of land unless:

                         (1) the owner of the land is in compliance with all applicable provisions of Chapter 65, Subchapter A and Subchapter B, of this title; or

                         (2) the department determines that the disease management value of the prospective activities is a factor of such significance that approval is warranted.

                 (h) A deer taken during the period of validity of a special take authorization shall be reported to the department within 24 hours of removal via email or other department approved notification method to the department’s wildlife division representative coordinating the authorization.

                 (i) Following submission to the department of any tissues or parts necessary as directed in a special take authorization, a person to whom the special take authorization or an agent thereof shall dispose of all remaining portions or parts of a deer taken under a special take authorization, either by:

                         (1) burial at a depth of at least three feet below ground level on the property where the take occurred; 

                         (2) delivery to a landfill authorized by the Texas Commission on Environmental Quality to receive such wastes; or

                         (3) as directed otherwise by the department in the special take authorization.

                 (j) The department will not issue a special take authorization unless the applicant agrees in writing not to record by means of video, photograph, or other electronic media the act of taking or attempting to take deer under a special take authorization, or allow such recordings, or to make such recordings available to the public.

                 (k) This section shall not be construed to relieve any person of the obligation to comply with any applicable municipal, county, state, or federal law, except as may be specifically authorized with respect to Parks and Wildlife Code and the regulations of the commission. 

                 (l) It is an offense for any person to:

                         (1) take or attempt to take a deer under a special take authorization without possessing a hunting license valid for the take of deer in Texas;

                         (2) sell, barter, offer to sell or barter, or otherwise give or receive anything of value in exchange for taking or allowing the take of deer or any parts of the animal, including antlers, under a special take authorization.

                 (m) The validity of a special take authorization is completely conditioned on the conduct of the person to whom the special take authorization is issued and agents of that person. Failure to abide by or comply with any provision of a special take authorization, as determined by the department, automatically invalidates the authorization and subjects the violator to prosecution for applicable violations of Parks and Wildlife Code, Chapters 42, 43, 61, 62, or 63 and any department regulations related to the take of deer. 

        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