Work Session Item No. 1
Presenter: Carter Smith

Work Session
TPWD Land and Water Resources Conservation and Recreation Plan
January 20, 2016

I.       Executive Summary: Executive Director Carter Smith will briefly update the Commission on the status of the agency’s efforts to implement the Land and Water Resources Conservation and Recreation Plan (the “Plan”).

II.     Discussion: In 2001, the 77th Texas Legislature directed that the Texas Parks and Wildlife Department (TPWD) develop a Land and Water Resources Conservation and Recreation Plan (Tex. Park & Wildlife Code §11.104). In 2002, the Texas Parks and Wildlife Commission (the Commission) adopted the first Plan. A revised Plan was adopted by the Commission in January 2005. In November 2009, the Commission approved a new Plan, effective January 1, 2010, that included broad input from stakeholders and the general public.  Minor revisions continue to be made to the plan. The 2015 version of the Plan is available on the TPWD web site. Executive Director Carter Smith will update the Commission on TPWD’s recent progress in achieving the Plan’s goals, objectives and deliverables.

The Plan consists of the following four goals:

1. Practice, Encourage and Enable Science-based Stewardship of Natural and Cultural Resources
2. Increase Access To and Participation In the Outdoors
3. Educate, Inform and Engage Texas Citizens in Support of Conservation and Recreation
4. Employ Efficient, Sustainable and Sound Business Practices

Work Session Item No. 2
Presenter: Mike Jensen
Julie Horsley

Work Session
Financial Overview
January 20, 2016

I.       Executive Summary:  Staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD).

II.     Discussion: Staff will update the Commission on revenue collected by TPWD for FY 2016 and will compare the FY 2016 budget to FY 2016 expenditures and summarize recent budget adjustments.  Additionally, staff will provide a summary briefing and cash projections for Fund 9 (Game, Fish, and Water Safety) and Fund 64 (State Parks).

Work Session Item No. 3
Presenter: Cindy Hancock

Work Session
Internal Audit Update
January 20, 2016

I.       Executive Summary:  Staff will provide a status report on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 15 and FY16 Internal Audit Plan and ongoing or completed external audits.

II.     Discussion:  Staff will present a status report on the TPWD FY15 and FY16 Internal Audit Plan as well as external audits that have been completed and/or are ongoing.

Work Session Item No. 4
Presenter: Ann Bright
Tammy Dunham

Work Session
Implementation of Legislation during the 84th Texas Legislative Session
Senate Bill 20 – State Agency Contracting
Request Permission to Publish Proposed Rules in the Texas Register
January 20, 2016

I.       Executive Summary: This item seeks permission to publish a proposed rule that would establish a procedure for enhanced monitoring of certain Texas Parks and Wildlife Department’s (TPWD) contracts, provide for reporting of certain contract risks and issues to the Texas Parks and Wildlife Commission (Commission) and expressly delegate to the TPWD Executive Director authority to enter contracts for the purchase of goods or services with a value exceeding $1 million.

II.     Discussion: Senate Bill 20, 84th Legislature R.S. (2015), enacted several new provisions related to state agency contracting. New Government Code §2261.253(c)  states that “each state agency by rule shall establish a procedure to identify each contract that requires enhanced contract or performance monitoring and submit information on the contract to the governing board….” Government Code §2261.253(c) further requires that the agency’s governing body be immediately notified of any serious issue or risk that is identified with respect to a contract monitored under that section.

Senate Bill 20 also added Government Code §2261.254 which requires a state agency’s governing board to approve contracts with a value in excess of $1 million, and requires the presiding officer of the state agency to sign such contract.  However, the approval and signature of such contracts may be delegated to the state agency’s executive director.  TPWD regulations currently delegate authority to enter contracts to the TPWD Executive Director.  (31 Tex. Admin. Code §51.60).  The proposed amendment would clarify that such delegation includes, but is not limited to, contracts with a value in excess of $1 million.

TPWD staff have been working to incorporate Senate Bill 20 requirements into TPWD’s contracting policies and procedures.

III.    Recommendation: Staff requests permission to publish a proposed rule to the Texas Register to adopt the required procedures by reference. 

Work Session Item No. 4
Exhibit A

Chapter 51. Executive

Subchapter B. [Authority to] Agency Contracting

AMENDED:

§51.60. Authority to Contract

      The executive director or the executive director’s designee may negotiate and enter into an agreement on behalf of the department if the agreement is in the best interests of the department, including, but not limited to, a contract for the purchase of goods or services that has a value exceeding $1 million.

NEW:

§51.61. Enhanced Contract Monitoring

      (a) Except as otherwise provided in this section, before the department enters into a contract, the department will determine if enhanced monitoring of the contract and the contractor’s performance is required.

      (b) In determining if a contract requires enhanced contract monitoring, the department will consider the following factors, to the extent applicable:

                  (1) Total Contract Price. The department will consider the estimated dollar amount of the contract. Contracts with a higher dollar amount are more likely to require enhanced contract monitoring.

                  (2) Total Contract Duration. The department will consider the anticipated overall contract period including renewal options. Longer term contracts are more likely to require enhanced contract monitoring.

                  (3) Funding Source. The department will consider the complexity of and restrictions associated with funding sources for the contract. Contracts funded from multiple types or sources of funding and contracts funded with restricted or time-limited funds are more likely to require enhanced contract monitoring.

                  (4) User Impacts. The department will consider the extent and number of persons impacted by this contract. Contracts with wider impacts are more likely to require enhanced contract monitoring.

                  (5) Criticality of Deliverable Timing. The department will consider the impact to the department and the state if contract deliverables are delayed. Contracts for which timely completion is critical are more likely to require enhanced contract monitoring.

                  (6) Impact of Contract Failure. The department will consider the impact to the department and the state if the contractor fails to deliver as required in the contract. Contracts for which failure would have statewide impacts, would result in violation of state or federal mandates, or would result in the loss of substantial funds are more likely to require enhanced contract monitoring.

                  (7) Locations Impacted. The department will consider the number of locations impacted by the contract. Contracts that will be implemented in multiple locations around the state are more likely to require enhanced contract monitoring.

                  (8) Availability of Resources for Contract Management. The department will consider the extent of resources readily available to manage the contract. Contracts for which resources are limited or for which consultants or temporary staff are required to manage the contract are more likely to require enhanced contract monitoring.

                  (9) Complexity of Project. The department will consider the complexity of requirements and resources to be managed. Contracts with more complex requirements involving external experts or evaluators are more likely to require enhanced contract monitoring.

                  (10) Health and Safety Risk. The department will consider how the contract would impact the health and safety of department employees and the general public. Contracts that are required to reduce or eliminate health and safety risks are more likely to require enhanced contract monitoring.

                  (11) Business Process Impact. The department will consider the level of impact to the department’s business processes. Contracts that will have department-wide business impacts are more likely to require enhanced contract monitoring.

                  (12) Payment Methodology Risks. The department will consider the complexity of the methodology for calculating and making payments under the contract. Contracts with more complex payment methodology are more likely to require enhanced contract monitoring.

                  (13) End Users’ Training Needs. The department will consider the extent of training required for end-users as a result of the contract. Contracts requiring extensive training by a vendor or external trainers are more likely to require enhanced contract monitoring.

                  (14) Software Technology Customization. The department will consider the level of customization required for software technology contracts. Software technology contracts that involve a fully customized software solution are more likely to require enhanced contract monitoring.

                  (15) Impact on Existing Technology. The department will consider the extent that implementation of a technology application or technology infrastructure contract will impact existing department systems. Contracts for a technology service or product that will impact existing applications or infrastructure are more likely to require enhanced contract monitoring.

                  (16) Interface Connectivity. The department will consider the number of existing technology applications that will be impacted by a technology application or technology infrastructure contract. Technology contracts that will interface with multiple department systems are more likely to require enhanced contract monitoring.

      (c) The department may determine, after considering the factors listed in (b), that certain types or classes of contracts are low risk and have a low likelihood of serious issues, and are not required to be individually considered for enhanced contract monitoring.

      (d) The appropriate division director within the department will notify the department’s executive director who will notify the Parks and Wildlife Commission regarding any serious risk or issue identified in connection with a contract subject to enhanced contract monitoring.

Work Session Item No. 5
Presenter: John Davis

Work Session
Final Report of the Snake Harvest Working Group
January 20, 2016

I.             Executive Summary: This item briefs the Texas Parks and Wildlife (TPW) Commission on the report from the Snake Harvest Working Group as it relates to the use of gasoline and its associated vapors to capture rattlesnakes.

II.     Discussion: Under Parks and Wildlife Code, Chapter 67, the Texas Parks and Wildlife Department (TPWD) is required to ensure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully. Chapter 67 also provides the TPW Commission with the authority to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that TPWD considers necessary to manage the species.

In January, 2015, staff was directed to establish a Snake Harvest Working Group to analyze various issues related to the practice of using gasoline and its associated vapors to drive rattlesnakes from underground or hiding places for purpose of capture, and to deliver the working group’s report to the TPW Commission.  That working group has completed its task and this briefing will summarize its report.

Work Session Item No. 6
Presenter: Ken Kurzawski
Jeremy Leitz
Brandi Reeder

Work Session
2016-2017 Statewide Recreational and Commercial Fishing Proclamations – Request Permission to Publish Proposed Changes in the Texas Register
January 20, 2016

I.       Executive Summary:  This item seeks permission to publish proposed changes to the Statewide Recreational and Commercial Fishing Proclamations in the Texas Register for public comment. The proposed amendments are listed below or could come from the discussion of the scoping items below:

Inland Fisheries

• Modify harvest regulations for largemouth bass on Lake Naconiche (Nacogdoches County);
• Modify harvest regulations for smallmouth bass on Lake Meredith (Hutchinson, Moore, and Potter counties);
• Modify harvest regulations for channel and blue catfish bass on Lake Tawakoni (Hunt; Raines, and Van Zandt counties)
• Modify harvest regulations for largemouth bass on the Sabine River in Newton and Orange counties; and
• Modify harvest regulations for largemouth bass in Chambers, Galveston, Jefferson, and Orange counties.

Coastal Fisheries

• Clarify maximum size limits for black drum.

Law Enforcement

• Clarify pole-and-line restrictions for fresh and salt water.

II.     Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking fisheries resources for recreational purposes is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapters 61 and 67. Statutory authority to regulate commercial fisheries is delegated to the commission under Parks and Wildlife Code, Chapters 47 and 66.  The proposed rules are based upon suggestions from the public, statutory requirements, and commission policy, including scientific investigation and required findings of fact where applicable. The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Work Session Item No. 6
Exhibit A

STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION

PROPOSED TEXT

TITLE 31, TEXAS ADMINISTRATIVE CODE

CHAPTER 57, FISHERIES

SUBCHAPTER N, STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION

         The Texas Parks and Wildlife Department proposes amendments to §57.973 and §57.981, concerning the Statewide Recreational and Commercial Fishing Proclamations.

         §65.973. Devices, Means, and Methods.

                 (a) – (f) (No change.)

                 (g) Device restrictions. Devices legally used for taking fresh or saltwater fish or shrimp may be used to take crab as authorized by this subchapter.

                         (1) – (12) (No change.)

                         (13) Pole and line.

                                  (A) Game and non-game fish may be taken by pole and line. It is unlawful to use a pole and line to take or attempt to take fish by foul-hooking, snagging, or jerking [with one or more hooks attached to a line or artificial lure used in a manner to foul-hook a fish(snagging or jerking)]. A fish is foul-hooked when caught by a hook in an area other than the fish’s mouth.

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

                         (14) – (23) (No change.)

         §57.981. Bag, Possession, and Length Limits.

                 (a) – (b) (No change.)

                 (c) There are no bag, possession, or length limits on game or non-game fish, except as provided in this subchapter.

                         (1) – (4) (No change.)

                         (5) Except as provided in subsection (d) of this section, the statewide daily bag and length limits shall be as follows.

                                  (A) – (E) (No change.)

                                  (F) Drum, black.

                                          (i) – (ii) (No change.)

                                          (iii) Maximum length limit: 30 inches[No maximum length limit].

                                          (iv) (No change.)

                                  (G) – (N) (No change.)

                                  [(O) Saugeye.]

                                          [(i) Daily bag limit: 3.]

                                          [(ii) Minimum length limit: 18 inches.]

                                          [(iii) No maximum length limit.]

                                  (O)[(P)] Seatrout, spotted.

                                          (i) Daily bag limit:

                                                   (I) for all waters south of F.M. 457 in Matagorda County: 5;

                                                   (II) for all waters north of F.M. 457 in Matagorda County: 10.

                                          (ii) Minimum length limit: 15 inches.

                                          (iii) Maximum length limit: 25 inches.

                                          (iv) Only one spotted seatrout greater than 25 inches may be retained per day. A spotted seatrout retained under this subclause counts as part of the daily bag and possession limit.

                                  (P)[(Q)] Shark: all species (including hybrids and subspecies).

                                          (i) all species other than Atlantic sharpnose, blacktip, and bonnethead and the species listed in item (ii)(IV) of this subparagraph:

                                                   (I) Daily bag limit: 1.

                                                   (II) Minimum length limit: 64 inches.

                                                   (III) No maximum length limit.

                                          (ii) Atlantic sharpnose, blacktip, and bonnethead:

                                                   (I) Daily bag limit: 1.

                                                   (II) Minimum length limit: 24 inches.

                                                   (III) No maximum length limit.

                                                   (IV) The take of the following species of sharks from the waters of this state is prohibited and they may not be possessed on board a vessel at any time:

                                                           (-a-) Atlantic angel;

                                                           (-b-) Basking;

                                                           (-c-) Bigeye sand tiger;

                                                           (-d-) Bigeye sixgill;

                                                           (-e-) Bigeye thresher;

                                                           (-f-) Bignose;

                                                           (-g-) Caribbean reef;

                                                           (-h-) Caribbean sharpnose;

                                                           (-i-) Dusky;

                                                           (-j-) Galapagos;

                                                           (-k-) Longfin mako;

                                                           (-l-) Narrowtooth;

                                                           (-m-) Night;

                                                           (-n-) Sandbar;

                                                           (-o-) Sand tiger;

                                                           (-p-) Sevengill;

                                                           (-q-) Silky;

                                                           (-r-) Sixgill;

                                                           (-s-) Smalltail;

                                                           (-t-) Whale; and

                                                           (-u-) White.

                                  (Q)[(R)] Sheepshead.

                                          (i) Daily bag limit: 5.

                                          (ii) Minimum length limit: 15 inches.

                                          (iii) No maximum length limit.

                                  (R)[(S)] Snapper.

                                          (i) Lane.

                                                   (I) Daily bag limit: None.

                                                   (II) Minimum length limit: 8 inches.

                                                   (III) No maximum length limit.

                                          (ii) Red.

                                                   (I) Daily bag limit: 4.

                                                   (II) Minimum length limit: 15 inches.

                                                   (III) No maximum length limit.

                                                   (IV) Red snapper may be taken using pole and line, but it is unlawful to use any kind of hook other than a circle hook baited with natural bait.

                                          (iii) Vermilion.

                                                   (I) Daily bag limit: None.

                                                   (II) Minimum length limit: 10 inches.

                                                   (III) No maximum length limit.

                                  (S)[(T)] Snook.

                                          (i) Daily bag limit: 1.

                                          (ii) Minimum length limit: 24 inches.

                                          (iii) Maximum length limit: 28 inches.

                                  (T)[(U)] Tarpon.

                                          (i) Daily bag limit: 1.

                                          (ii) Minimum length limit: 85 inches.

                                          (iii) No maximum length limit.

                                  (U)[(V)] Triggerfish, gray.

                                          (i) Daily bag limit: 20.

                                          (ii) Minimum length limit: 16 inches.

                                          (iii) No maximum length limit.

                                  (V)[(W)] Tripletail.

                                          (i) Daily bag limit: 3.

                                          (ii) Minimum length limit: 17 inches.

                                          (iii) No maximum length limit.

                                  (W)[(X)] Trout (rainbow and brown trout, including their hybrids and subspecies).

                                          (i) Daily bag limit: 5 (in any combination).

                                          (ii) No minimum length limit.

                                          (iii) No maximum length limit.

                                  (X)[(Y)] Walleye and Saugeye.

                                          (i) Daily bag limit: 5.

                                          (ii) No minimum length limit.

                                          (iii) No maximum length limit.

                                          (iv) Two walleye or saugeye of less than 16 inches may be retained per day.

                 (d) Exceptions to statewide daily bag, possession, and length limits shall be as follows:

                         (1) Freshwater species.

                                  (A) Bass: largemouth, smallmouth, spotted, and Guadalupe (including their hybrids and subspecies). In all waters in the Lost Maples State Natural Area (Bandera County):

                                          (i) Daily bag limit: 0.

                                          (ii) No minimum length limit.

                                          (iii) All angling is limited to catch and release only.

                                  (B) Bass: largemouth and spotted.

                                          (i) – (ii) (No change.)

                                          (iii) [Sabine River (Newton and Orange counties) from Toledo Bend dam to the I.H. 10 bridge and] Toledo Bend Reservoir (Newton, Sabine, and Shelby counties).

                                                   (I) – (II) (No change.)

                                          (iv) Sabine River (Newton and Orange counties) from Toledo Bend dam to a line across Sabine Pass between Texas Point and Louisiana Point.

                                                   (I) Daily bag limit: 8 (in any combination with spotted bass).

                                                   (II) Minimum length limit: 12 inches (largemouth bass); no limit for spotted bass. Possession limit is 10.

                                  (C) Bass: largemouth.

                                          (i) Chambers, Galveston, Jefferson, and Orange counties including any public waters that form boundaries with adjacent counties.

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: 12 inches.

                                          (ii)[(i)] Conroe (Montgomery and Walker counties), Granbury (Hood County), Possum Kingdom (Palo Pinto, Stephens, and Young counties), and Ratcliff (Houston County).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: 16 inches.

                                          (iii)[(ii)] Lakes Kurth (Angelina County), [and] Nacogdoches (Nacogdoches County), and Naconiche (Nacogdoches County).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: It is unlawful to retain largemouth bass of 16 inches or greater in length. Largemouth bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing but may not be removed from the immediate vicinity of the lake. After weighing the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.

                                          (iv)[(iii)] Lakes Bellwood (Smith County), Bright (Williamson County), Brushy Creek (Williamson County), Bryan (Brazos County), Casa Blanca (Webb County), Cleburne State Park (Johnson County), Cooper (Delta and Hopkins counties), Fairfield (Freestone County), Gilmer (Upshur County), Marine Creek Reservoir (Tarrant County), Meridian State Park (Bosque County), [Naconiche (Nacogdoches County),] Old Mount Pleasant City (Titus County), Pflugerville (Travis County), Rusk State Park (Cherokee County), and Welsh (Titus County).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: 18 inches.

                                          (v)[(iv)] Buck Lake (Kimble County), Lake Kyle (Hays County), and Nelson Park Lake (Taylor County).

                                                   (I) Daily bag limit: 0.

                                                   (II) Minimum length limit: No limit.

                                                   (III) Catch and release only.

                                          (vi)[(v)] Lake Jacksonville (Cherokee County) and O.H. Ivie Reservoir (Coleman, Concho, and Runnels counties).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: No limit.

                                                   (III) It is unlawful to retain more than two bass of less than 18 inches in length.

                                          (vii)[(vi)] Purtis Creek State Park Lake (Henderson and Van Zandt counties) and Raven (Walker County).

                                                   (I) Daily bag limit: 0.

                                                   (II) Minimum length limit: No limit.

                                                   (III) Catch and release only, except that any bass 24inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing but may not be removed from the immediate vicinity of the lake. After weighing the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.

                                          (viii)[(vii)] Lakes Bridgeport (Jack and Wise counties), Burke-Crenshaw (Harris County), Davy Crockett (Fannin County), Georgetown (Williamson County), Grapevine (Denton and Tarrant counties), Madisonville (Madison County), Nasworthy (Tom Green), San Augustine City (San Augustine County), and Sweetwater (Nolan County).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: 14 — 18 inch slot limit.

                                                   (III) It is unlawful to retain largemouth bass between 14 and 18 inches in length.

                                          (ix)[(viii)] Lakes Athens (Henderson County), Bastrop (Bastrop County), Buescher State Park (Bastrop County), Houston County (Houston County), Joe Pool (Dallas, Ellis, and Tarrant counties), Lady Bird (Travis County), Mill Creek (Van Zandt County), Murvaul (Panola County), Pinkston (Shelby County), Timpson (Shelby County), Walter E. Long (Travis County), and Wheeler Branch (Somervell County).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: 14 — 21 inch slot limit.

                                                   (III) It is unlawful to retain largemouth bass between 14 and 21 inches in length. No more than 1 bass 21 inches or greater in length may be retained each day.

                                          (x)[(ix)] Lakes Fayette County (Fayette County), Gibbons Creek Reservoir (Grimes County), and Monticello (Titus County).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: 14 — 24 inch slot limit.

                                                   (III) It is unlawful to retain largemouth bass between 14 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.

                                           (xi)[(x)] Lake Fork (Wood Rains and Hopkins counties).

                                                   (I) Daily bag limit: 5.

                                                   (II) Minimum length limit: 16 — 24 inch slot limit.

                                                   (III) It is unlawful to retain largemouth bass between 16 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.

                                  (D) Bass: smallmouth.

                                          [(i)] Devil’s River (Val Verde County) from State Highway 163 bridge crossing near Juno downstream to Dolan Falls and Wheeler Branch (Somervell County).

                                          (i)[(I)] Daily bag limit: 3.

                                          (ii)[(II)] Minimum length limit: 18 inches.

                                          [(ii) Lake Meredith (Hutchinson, Moore, and Potter counties).]

                                                   [(I) Daily bag limit: 3.]

                                                   [(II) Minimum length limit: 12 — 15 inch slot limit]

                                                   [(III) It is unlawful to retain smallmouth bass between 12 and 15 inches in length.]

                                  (E) – (H) (No change.)

                                  (I) Catfish: channel and blue catfish, their hybrids and subspecies.

                                          (i) — (ix) (No change.)

                                          (x) Lake Tawakoni (Hunt, Rains, and Van Zandt counties).

                                                   (I) Daily bag limit: 25 (in any combination).

                                                   (II) Minimum length limit: No limit.

                                                   (III) No more than seven blue or channel catfish 20 inches or greater may be retained each day, and of these, no more than two can be 30 inches or greater in length.

                                  (J) – (Q) (No change.)

Work Session Item No. 7
Presenter: Alan Cain
Dave Morrison

Work Session
2016-2017 Statewide Hunting Proclamation – Request Permission to Publish Proposed Changes in the Texas Register
January 20, 20

I.       Executive Summary:  This item seeks permission to publish proposed amendments to the Statewide Hunting Proclamation and the Migratory Game Bird Proclamation in the Texas Register for public comment. The proposed amendments are as follows:

White-tailed Deer

• Eliminate the Antlerless and Spike-buck Control Permit;
• Create a definition of “unbranched antlered deer”;
• Replace the “Special Late Antlerless and Spike-buck Season” with a “Special Late Season” to accommodate the inclusion of “unbranched antlered deer” in the bag limit;
• Allow the take of antlerless deer without a permit on U.S. Forest Service Lands during youth-only seasons;
• Implement a full white-tailed deer season (and archery-only open season) in 14 Panhandle counties;
• Implement additional “doe days” in 23 counties and portions of two counties; and
• Implement a muzzleloader-only open season in 32 additional counties.

Migratory Game Bird Regulations

• Establish regulations governing the take of migratory game birds (early season and late season).

Miscellaneous Housekeeping-type Changes

• Clarification of general rules regarding antlerless deer permit applicability.

II.     Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61.  The potential changes are based upon statutory requirements and Commission policy, including scientific investigation and required findings of fact where applicable. The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Work Session Item No. 7
Exhibit A

2016-2017 STATEWIDE HUNTING PROCLAMATION AMENDMENTS

PROPOSED TEXT

TITLE 31, TEXAS ADMINISTRATIVE CODE

CHAPTER 65, WILDLIFE

SUBCHAPTER A, STATEWIDE HUNTING PROCLAMATION

         The Texas Parks and Wildlife Department (the department, or TPWD) proposes the repeal of §65.27 and amendments to §§65.3, 65.7, 65.9, 65.10, 65.24, and 65.42, concerning the Statewide Hunting Proclamation.

         §65.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this chapter shall have the meanings assigned in the Texas Parks and Wildlife Code.

                 (1) – (24) (No change.)

                 (25) Unbranched antlered deer—A buck deer having at least one unbranched antler.

                 (26)[(25)] Upper-limb disability — A permanent loss of the use of fingers, hand or arm in a manner that renders a person incapable of using a longbow, compound bow or recurved bow.

                 (27)[(26)] Wildlife resources — Alligators, all game animals, and all game birds.

                 (28)[(27)] Wounded deer — A deer leaving a blood trail.

         §65.7. Harvest Log.

                 (a) The provisions of this subsection apply only to a person in possession of a license purchased through an automated point-of-sale system.

                         (1) (No change.)

                         (2) Completion of the harvest log is not required for deer taken:

                                  (A) – (E) (No change.)

                                  [(F) under the provisions of §65.27 of this title (relating to Antlerless and Spike-Buck Deer Control Permits)].

                 (b) (No change.)

         §65.9. Open Seasons: General Rules.

                 (a) (No change.)

                 (b) No antlerless deer permit is required to take an antlerless white-tailed deer during the archery-only open season, except on lands for which Managed Lands Deer permits have been issued.

                 (c) (No change.)

         §65.10. Possession of Wildlife Resources.

                 (a) – (b) (No change.)

                 (c) A person who lawfully takes a deer is exempt from the tagging requirements of Parks and Wildlife Code, §42.018 if the deer is taken:

                         (1) – (7) (No change.)

                         [(8) under the provisions of §65.27 of this title (relating to Antlerless and Spike-Buck Deer Control Permits)].

                 (d) – (l) (No change.)

         §65.24. Permits.

                 (a) – (d) (No change.)

                 (e) An applicant for a permit issued under §65.26 of this title[, §65.27 of this title (relating to Antlerless and Spike Buck Control Permits (control permits)),] or §65.34 of this title may request a review of a decision by the department to deny issuance of those permits.

                         (1) – (5) (No change.)

         §65.25. Wildlife Management Plan (WMP).

                 (a)  Deer.

                         (1) An approved WMP, specifying a harvest quota for antlerless deer or both buck and antlerless deer, is required for the issuance of Managed Lands Deer Permits [and Antlerless/Spike-Buck Deer Control Permits].

                         (2) – (3) (No change.)

                 (b) (No change.)

         §65.42. Deer.

                 (a) No person may exceed the applicable county bag limit or the annual bag limit of five white-tailed deer (no more than three bucks) and two mule deer (no more than one buck), except as provided by:

                         (1) – (2) (No change.)

                         [(3) §65.27 of this title (relating to Antlerless and Spike-Buck Deer Control Permits);]

                         (3)[(4)] §65.28 of this title (relating to Landowner Assisted Management Permits (LAMPS));

                         (4)[(5)] an antlerless mule deer permit issued under §65.32 of this title (relating to Antlerless Mule Deer Permits);

                         (5)[(6)] special permits under the provisions of Subchapter H of this chapter (relating to Public Lands Proclamation); or

                         (6)[(7)] (7) special antlerless permit issued by the U.S. Forest Service (USFS) for use on USFS lands that are part of the department’s public hunting program.

                 (b) White-tailed deer. The open seasons, annual bag limits, and special provisions for white-tailed deer shall be as follows. If Managed Lands Deer Permits (MLDPs) have been issued for a tract of land in any county, they must be attached to all deer harvested on the tract of land, regardless of season. An MLDP buck permit may not be used to harvest or tag an antlerless deer. An MLDP antlerless permit may not be used to tag a buck deer. The counties and parts of counties listed in paragraphs (1) and (2) of this subsection section are in the South Zone. All other counties and parts of counties listed in this subsection are in the North Zone.

                         (1) In Aransas, Bee, Brooks, Calhoun, Cameron, Dimmit, Duval, Frio, Hidalgo, Jim Hogg, Jim Wells, Kenedy, Kinney (south of U.S. Highway 90), Kleberg, LaSalle, Live Oak, Maverick, McMullen, Medina (south of U.S. Highway 90), Nueces, Refugio, San Patricio, Starr, Uvalde (south of U.S. Highway 90), Val Verde (that southeastern portion located both south of U.S. Highway 90 and east of Spur 239), Webb, Willacy, Zapata, and Zavala counties, there is a general open season.

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

                                  (C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and unbranched antlered[spike-buck] deer only. Open season: 14 consecutive days starting the first Monday following the third Sunday in January.

                                  (D) (No change.)

                         (2) In Atascosa County there is a general open season.

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

                                  (C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and unbranched antlered[spike-buck] deer only. Open season: 14 consecutive days starting the first Monday following the third Sunday in January.

                                  (D) (No change.)

                         (3) In Bandera, Baylor, Bexar, Blanco, Burnet, Callahan, Coke, Coleman, Comal (west of Interstate 35), Concho, Crockett, Edwards, Gillespie, Glasscock, Haskell, Hays (west of Interstate 35), Howard, Irion, Jones, Kendall, Kerr, Kimble, Kinney (north of U.S. Highway 90), Knox, Llano, Mason, McCulloch, Medina (north of U.S. Highway 90), Menard, Mitchell, Nolan, Pecos, Real, Reagan, Runnels, San Saba, Schleicher, Shackelford, Sterling, Sutton, Taylor, Terrell, Throckmorton, Tom Green, Travis (west of Interstate 35), Upton, Uvalde (north of U.S. Highway 90), Val Verde (north of U.S. Highway 90; and that portion located both south of U.S. 90 and west of Spur 239), and Wilbarger counties, there is a general open season.

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

                                  (C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and unbranched antlered[spike-buck] deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.

                                  (D) (No change.)

                         (4) In Archer, Bell (west of IH 35), Bosque, Brown, Clay, Coryell, Hamilton, Hill, Jack, Lampasas, McLennan, Mills, Palo Pinto, Somervell, Stephens, Wichita, Williamson (west of IH 35) and Young counties, there is a general open season.

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

                                  (C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and unbranched antlered[spike-buck] deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.

                                  (D) (No change.)

                         (5) In Armstrong, Borden, Briscoe, Carson, Childress, Collingsworth, Cottle, Crosby, Dickens, Donley, Fisher, Floyd, Foard, Garza, Gray, Hall, Hardeman, Hemphill, Hutchinson, Kent, King, Lipscomb, Motley, Ochiltree, Roberts, Scurry, Stonewall, and Wheeler counties, there is a general open season.

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

                                  (C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and unbranched antlered[spike-buck] deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.

                                  (D) (No change.)

                         (6) (No change.)

                         (7) In Comanche, Cooke, Denton, Eastland, Erath, Hood, Johnson, Montague, Parker, Tarrant, and Wise counties, there is a general open season.

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

                                  (C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and unbranched antlered[spike-buck] deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.

                                  (D) (No change.)

                         (8) (No change.)

                         (9) In Anderson, Bowie, Brazos, Camp, Cass, Gregg, Grimes, Harrison, Henderson, Lamar, Leon, Madison, Marion, Morris, Nacogdoches, Panola, Red River, Robertson, Rusk, Sabine, San Augustine, [and] Shelby, and Upshur counties, there is a general open season.

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

                         (10) In Bell (East of IH 35), Burleson,[Anderson, Brazos, Camp,] Delta, Ellis, Falls, Fannin, Franklin, Freestone,[Gregg, Grimes, Henderson,] Hopkins, Hunt, Kauffman, Limestone, Milam, Navarro[Lamar, Leon, Madison, Morris,] Rains, [Red River, Robertson,] Smith, Titus, [Upshur,] Van Zandt, Williamson (East of IH 35), and Wood counties, there is a general open season.

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

                         (11) (No change.)

                         (12) In Austin, Bastrop, [Bell (east of IH 35), Burleson,] Caldwell, Colorado, Comal (east of IH 35), De Witt, [Ellis, Falls,] Fayette, [Freestone,] Goliad (north of U.S. Highway 59), Gonzales, Guadalupe, Hays (east of IH 35), Jackson (north of U.S. Highway 59), Karnes, [Kaufman,] Lavaca, Lee, [Limestone, Milam, Navarro,] Travis (east of IH 35), Victoria (north of U.S. Highway 59), Waller, Washington, Wharton (north of U.S. Highway 59), [Williamson (east of IH 35)] and Wilson counties, there is a general open season.

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

                         (13) In Andrews, Bailey Castro, Cochran, Dallam, Dawson, Deaf Smith, Gaines, Hale, Hansford, Hartley, Hockley, Lamb, Lubbock, Lynn, Martin, Moore, Oldham, Parmer, Potter, Randall, Sherman, [and] Swisher, Terry and Yoakum counties, there is a general open season.

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

                         (14) In Crane, Ector, Loving, Midland, Ward, and Winkler counties, there is a general open season.

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

                         (15) – (16) (No change.)

                         (17) Muzzleloader-only open seasons, and bag and possession limits shall be as follows. In Anderson, Angelina, Austin, Bastrop, Bell (East of IH 35), Bowie, Brazoria, Brazos, Brewster, Burleson, Caldwell, Camp, Cass Chambers, Cherokee, Colorado, Comal (East of IH 35), Culberson, Delta, DeWitt, Ellis, Fannin, Falls, Fayette, Fort Bend, Franklin, Freestone, Galveston, Goliad, Gonzales, Gregg, Grimes, Guadalupe, Hardin, Harris, Harrison, Hays (East of IH 35), Henderson, Hopkins, Houston, Hunt, Jackson, Jasper, Jeff Davis, Jefferson, Karnes, Kaufman, Lamar, Lavaca, Lee, Leon, Liberty, Limestone, Madison, Marion, Matagorda, Milam, Montgomery, Morris, Nacogdoches, Navarro, Newton, Orange, Panola, Polk, Presidio, Rains, Red River, Reeves, Robertson, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Smith, Titus, Travis (East of IH 35), Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Waller, Washington, Wharton, Williamson (East of IH 35), [and] Wilson and Wood counties, there is an open season during which deer may be taken only with a muzzleloader.

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

                         (18) Special Youth-Only Seasons. There shall be special youth-only general hunting seasons in all counties where there is a general open season for white-tailed deer.

                                  (A) – (F) (No change.)

                                  (G) antlerless deer may be taken without an antlerless deer permit on USFS lands.

                 (c) (No change.)

Repeal — §65.27. Antlerless and Spike-buck Deer Control Permits (control permits).

Work Session Item No. 7
Exhibit B

2016-2017 MIGRATORY GAME BIRD PROCLAMATION AMENDMENTS

PROPOSED TEXTTITLE 31, TEXAS ADMINISTRATIVE CODE

CHAPTER 65, WILDLIFE

SUBCHAPTER N, MIGRATORY GAME BIRD PROCLAMATION

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

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

                 (a) Rails.

                         (1) Dates: September 10-25, 2016 and November 5 — December 28, 2016 [September 12-27, 2015 and October 31 — December 23, 2015].

                         (2) Daily bag and possession limits:

                                  (A) king and clapper rails: 15 in the aggregate per day; 45 in the aggregate in possession.

                                  (B) sora and Virginia rails: 25 in the aggregate per day; 75 in the aggregate in possession.

                 (b) Dove seasons.

                         (1) North Zone.

                                  (A) Dates: September 1 – November 13, 2016 and December 17, 2016  – January 1, 2017[September 1 — October 25, 2015 and December 18, 2015 — January 1, 2016].

                                  (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: 45 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than 6 white-tipped doves in possession.

                         (2) Central Zone.

                                  (A) Dates: September 1 – November 6, 2016 and December 17, 2016  – January 8, 2017[September 1 — October 25, 2015 and December 18, 2015 — January 1, 2016].

                                  (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: 45 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than 6 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 23 – November 13, 2016 and December 17, 2016 — January 23, 2017[September 18 — October 21, 2015 and December 18, 2015 — January 22, 2016].

                                  (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: 45 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than 6 white-tipped doves in possession.

                         (4) Special white-winged dove area.

                                  (A) Dates: September 3, 4, 10, and 11, 2016[September 5, 6, 12, and 13, 2015].

                                          (i) Daily bag limit: 15 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than two mourning doves and two white-tipped doves per day.

                                          (ii) Possession limit: 45 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than 6 mourning doves and 6 white-tipped doves in possession.

                                  (B) Dates: September 23 – November 13, 2016 and December 17, 2016 — January 19, 2017[September 18 — October 21, 2015 and December 18, 2015 — January 18, 2016]

                                          (i) Daily bag limit: 15 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: 45 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than 6 white-tipped doves in possession.

                 (c) Gallinules.

                         (1) Dates: September 10-25, 2016 and November 5 — December 28, 2016[September 12-27, 2015 and October 31 — December 23, 2015].

                         (2) Daily bag and possession limits: 15 in the aggregate per day; 45 in the aggregate in possession.

                 (d) September teal-only season.

                         (1) Dates: September 10-25, 2016[September 12 — 27, 2015].

                         (2) Daily bag and possession limits: six in the aggregate per day; 18 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, 2016 — January 31, 2017[December 18, 2015 — January 31, 2016]. The daily bag limit is three. The possession limit is nine.

                 (h) Wilson’s snipe (Common snipe): October 29, 2015 — February 12, 2017[October 31, 2015 — February 14, 2016]. The daily bag limit is eight. The possession limit is 24.

                 (i) Canada geese: September 10-25, 2016[September 12 — 27, 2015] in the Eastern Goose Zone as defined in §65.317(b) of this title (relating to Zones and Boundaries for Late Season Species). The daily bag limit is five. The possession limit is 15.

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

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

                                  (A) High Plains Mallard Management Unit:

                                          (i) all species other than "dusky ducks": October 29-30, 2016 and November 4, 2016 – January 29, 2017[October 31 – November 1, 2015 and November 6, 2015 — January 31, 2016.]

                                          (ii) "dusky ducks": November 7, 2016 — January 29, 2017[November 9, 2015 — January 31, 2016].

                                  (B) North Zone:

                                          (i) all species other than "dusky ducks": November 12-27, 2016 and December 3, 2016 — January 29, 2017[November 7 — 29, 2015 and December 12, 2015 — January 31, 2016].

                                          (ii) "dusky ducks": November 17-27, 2016 and December 3, 2016 — January 29, 2017[November 12-29, 2015 and December 12, 2015 — January 31, 2016].

                                  (C) South Zone:

                                          (i) all species other than "dusky ducks": November 5-27, 2016 and December 10, 2016 — January 29, 2017[October 31 – November 29, 2015 and December 12, 2015 — January 24, 2016].

                                          (ii) "dusky ducks": November 10-27, 2016 and December 10, 2016 — January 29, 2017 [November 5-29, 2015 and December 12, 2015 — January 24, 2016].

                         (2) Geese.

                                  (A) Western Zone.

                                          (i) Light geese: November 5, 2016 – February 5, 2017[October 31, 2015 – January 31, 2016]. The daily bag limit for light geese is 20, and there is no possession limit.

                                          (ii) Dark geese: November 5, 2016 – February 5, 2017[October 31, 2015 – January 31, 2016]. The daily bag limit for dark geese is five, to include no more than two white-fronted geese.

                                  (B) Eastern Zone.

                                          (i) Light geese: November 5, 2016 — January 29, 2017[November 7, 2015 — January 31, 2016]. The daily bag limit for light geese is 20, and there is no possession limit.

                                          (ii) Dark geese:

                                                   (I) Season: November 5, 2016 — January 29, 2017[November 7, 2015 — January 31, 2016];

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

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

                                  (A) Zone A: October 29, 2016 – January 29, 2017[October 31, 2015 – January 31, 2016]. The daily bag limit is three. The possession limit is nine.

                                  (B) Zone B: November 18, 2016 – January 29, 2017[November 20, 2015 – January 31, 2016]. The daily bag limit is three. The possession limit is nine.

                                  (C) Zone C: December 17, 2016 — January 22, 2017[December 19, 2015 — January 24, 2016]. The daily bag limit is two. The possession limit is six.

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

                                  (A) High Plains Mallard Management Unit: October 22-23, 2016[October 24 — 25, 2015];

                                  (B) North Zone: November 5-6, 2016[October 31 – November 1, 2015]; and

                                  (C) South Zone: October 29-30, 2016[October 24 — 25, 2015].

         §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, white-winged doves and white-tipped doves: November 19 – December 5, 2016[November 7 — December 13, 2015].

                         (2) rails and gallinules: January 30 – February 12, 2017[February 1 — 14, 2016].

                         (3) woodcock: January 30 – February 12, 2017[February 1 — 14, 2016].

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

         §65.320. 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 30 – February 12, 2017[February 1 — 14, 2016];

                         (C) South Duck Zone: January 30 – February 12, 2017[February 1 — 14, 2016].

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

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

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

                 (4) Special Light Goose Conservation Period.

                         (A) From January 30 – March 19, 2017[February 1 — March 20, 2016], 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 19, 2017[February 1 — March 20, 2016], the take of light geese is lawful in the Western Zone as defined in §65.317 of this title.

Work Session Item No. 8
Presenter: Clayton Wolf

Work Session
Chronic Wasting Disease Response Update and Interim Deer Management Permit Rules Recommended Adoption of Proposed Rules
January 20, 2016

I.       Executive Summary: This item:

• provides an update on events related to the discovery of chronic wasting disease (CWD) in  deer breeding facility in Medina County on June 30, 2105; and
• seeks adoption of a proposed new interim rule governing Deer Management Permit (DMP) activities as part of the department’s response to the detection of chronic wasting disease (CWD) in captive cervid populations and subsequent efforts to ascertain its prevalence/stop its spread in both farmed and free-ranging populations. The new rule would impose testing requirements at DMP release sites where deer trapped on Class II Triple T trap sites or breeder deer from TC 2 or TC 3 deer breeding facilities have been released and require all deer introduced to Level 3 DMP facilities or Class III release sites to be tagged with an Radio Frequency Identification (RFID) or National Uniform Eartagging System (NUES) ear tag.

II.     Discussion: Since the discovery of CWD in a deer breeding facility in Medina County on June 30, 2015, staff have provided briefings to apprise the Commission of CWD response efforts.  This briefing will include an update on recent efforts by the Texas Animal Health Commission and the department related to facility hold orders, a CWD ante-mortem testing symposium, and CWD hunter-harvest surveillance for the 2015-2016 hunting season.

CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, and others (susceptible species). It is classified as a transmissible spongiform encephalopathy, a family of diseases that includes scrapie (found in sheep) and bovine spongiform encephalopathy (BSE, found in cattle). The department has been concerned for over a decade about the possible emergence of CWD in wild and captive deer populations in Texas. The department closed the Texas border in 2005 to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and recordkeeping. As of July 1, 2015, the department had tested more than 32,882 free-ranging deer in Texas for CWD, and cervid producers had submitted more than 12,759 test results to the department.

Following the confirmation in June of 2015 that a two-year-old white-tailed deer held in a deer breeding facility in Medina County (“index facility”) had tested positive for CWD, the department engaged in numerous rulemakings intended to identify, isolate, and contain CWD, including an emergency DMP rule adopted on October 5, 2015 (40 TexReg 7305). The proposed DMP rule located at Exhibit A would replace the current emergency rule on an interim basis and be in effect until the August 31, 2016 expiration date for all CWD response-related rules established by the Commission at the November 2015 meeting.

Based on additional information from the ongoing epidemiological investigation, disease surveillance data collected from captive and free ranging deer herds, guidance from the Texas Animal Health Commission, and input from stakeholder groups, the department intends to review the interim rule, if adopted, following the close of the deer season and present the results of that review to the Parks and Wildlife Commission (Commission) in the spring of 2016 for possible modifications.

III.    Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

The Texas Parks and Wildlife Commission adopts new 31 TAC §65.94, concerning Disease Detection and Response, with changes as necessary to the proposed text (located at Exhibit A) as published in the December 18, 2015 issue of the Texas Register (40 TexReg 9086). 

Work Session Item No. 8
Exhibit A

DEER MANGEMENT PERMIT CWD RULES

PROPOSAL PREAMBLE

 1. Introduction.

         The Texas Parks and Wildlife Department proposes new §65.94, concerning Chronic Wasting Disease — Deer Management Permit Provisions. The new rules will be part of Subchapter B, Division 2, Chronic Wasting Disease — Movement of Deer. The department wishes to emphasize that the proposed new rules, if adopted, would be an interim replacement for the current rule,  adopted on an emergency basis on October 5, 2015 (40 TexReg 7305), which is necessary to maintain regulatory continuity for the duration of the 2015-16 deer season and the period immediately thereafter. Based on additional information from the ongoing epidemiological investigation, disease surveillance data collected from captive and free ranging deer herds, guidance from the Texas Animal Health Commission, and input from stakeholder groups, the department intends to review the interim rule, along with the interim breeder rules, and Triple T (Permits to Trap, Transport, and Transplant Game Animals and Game Birds) rules following the close of the deer season and present the results of that review to the Parks and Wildlife Commission (Commission) in the spring of 2016 for possible modifications.

         The proposed new rule is part of a more comprehensive regulatory response intended to increase the probability of detecting chronic wasting disease (CWD) if a deer infected with CWD is released from a DMP facility. The proposed new rule is also part of a broader cooperation between the department and the Texas Animal Health Commission (TAHC) to protect susceptible species of exotic and native wildlife from CWD. TAHC is the state agency authorized to manage “any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable, even if the agent of transmission is an animal species that is not subject to the jurisdiction” of TAHC. Tex. Agric. Code §161.041(b).

         CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a transmissible spongiform encephalopathy (TSE), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE) in cattle, and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

         Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease in free-ranging populations has been correlated to deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. The implications of CWD to the multi-billion dollar ranching, hunting, and wildlife management economies in Texas are significant, unless it is contained and controlled.

         Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, and Deer Management Permit (DMP) regulations for white-tailed deer at 31 TAC Chapter 65, Subchapter D, the department may allow the temporary possession of free-ranging white-tailed or mule deer for breeding purposes within an enclosure on property surrounded by a fence capable of retaining deer. At the current time, there are no rules authorizing DMP activities for mule deer.

         In addition to authorizing the temporary possession of free-ranging white-tailed deer for breeding purposes, department regulations authorize the introduction of a buck deer from a deer breeding facility into a DMP facility for breeding purposes.  Deer breeders are permitted under Parks and Wildlife Code, Chapter 43, Subchapter L and 31 TAC Chapter 65, Subchapter T. The current rules provide, among other things, that a buck deer introduced to a DMP pen from a deer breeding facility may be liberated from the DMP pen to the surrounding or adjacent high-fenced acreage identified in the deer management plan associated with the DMP facility, returned to the deer breeding facility from which the buck deer was transferred, or transferred to another deer breeding facility. All other deer introduced to a DMP pen, whether by trapping from a free-ranging herd or transfer from a deer breeding facility, must be liberated from the DMP enclosure by a date specified by the department in the DMP permit.

         The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas, and has engaged in several rulemakings over the years to address the threat posed by CWD. In 2005, the department closed the Texas border to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and record keeping. (The closing of the Texas border to entry of out-of-state captive white-tailed and mule deer was updated, effective in January 2010, to address other disease threats to white-tailed and mule deer (35 TexReg 252).) Prior to 2012, CWD had not been known to exist in Texas; however, on July 10, 2012, the department confirmed that two mule deer sampled in the Texas portion of the Hueco Mountains tested positive for CWD. In response, the department and the Texas Animal Health Commission (TAHC) convened the CWD Task Force, comprised of wildlife-health professionals and cervid producers, to advise the department on the appropriate regulatory and policy measures to be taken to protect white-tailed and mule deer in Texas. Based on recommendations from the CWD Task Force, the department subsequently adopted new rules in 2013 (37 TexReg 10231) to implement a CWD containment strategy in far West Texas. The rules among other things require deer harvested in a specific geographical area to be presented at designated check stations to be tested for CWD.

         On June 30, 2015, the department received confirmation that a two-year-old white-tailed deer held in a deer breeding facility in Medina County (“index facility”) had tested positive for CWD. Subsequent testing confirmed the presence of CWD in additional white-tailed deer at the index facility. The source of the CWD at the index facility is unknown at this time. Within the last five years, the index facility accepted deer from 30 other Texas deer breeding facilities and transferred 835 deer to 147 separate sites (including 96 deer breeding facilities, 46 release sites, and three Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico). The department estimates that in the past five years, more than 728 locations in Texas (including 384 deer breeding facilities) either received deer from the index facility or received deer from a deer breeding facility that had received deer from the index facility. CWD has subsequently been detected in an additional deer breeding facility.

         In response, the department engaged in a vigorous effort to involve and solicit input from other regulatory agencies, various stakeholder groups, and the regulated community to develop a regulatory response that both discharged the department’s duty to protect the wildlife resources of the state for the enjoyment of the people and to the greatest extent possible minimized disruption to the regulated community. As a result of that effort, the department on August 18, 2015, adopted emergency rules governing deer breeder permits (40 TexReg 5566). Interim rules governing deer breeder permits were proposed on September 21, 2015 (40 TexReg 6856), and were approved, with changes, by the Parks and Wildlife Commission on November 5, and will be published in a future issue of the Texas Register.

         Those rules (§§65.90-65.93 of this subchapter, or “CWD deer breeder rules”) address CWD testing requirements and movement restrictions for white-tailed deer and mule deer held under the authority of deer breeder permits issued by the department. The rules set forth specific CWD testing requirements for deer breeders, which would have to be satisfied in order to transfer deer to other deer breeders, DMP facilities, or for purposes of release. The CWD deer breeder rules also impose CWD testing requirements on sites where certain breeder deer are liberated (release sites). The CWD deer breeder rules create a tiered system of testing requirements for deer breeding facilities and release sites based on the level of risk of transmission of CWD. To facilitate this testing, the CWD deer breeder rules classify breeding facilities and release sites according to degree of CWD testing and level of risk of exposure to CWD.

         Epidemiological science dictates that a population receiving individuals from a higher risk population is itself at greater risk. Therefore, the CWD deer breeder rules address transfers from higher risk to lower risk populations by requiring the receiving deer breeding facility or release site to comply with the testing requirements associated with the status of the originating facility, if the status of the originating facility is lower than the status of the receiving facility. Because deer from deer breeding facilities and release sites may be introduced into a DMP facility, and then either released or returned to a breeding facility, it is necessary to identify how DMP activities impact the level of testing required by breeding facilities and release sites that receive deer from DMP facilities. The level of risk is based on the degree of testing and exposure to CWD-positive or CWD-exposed animals.

         The department notes for purposes of clarification that the provisions of §§65.90-65.93 of this subchapter would also apply to the proposed new rule. The applicable provisions would include, for example, the definitions in §65.90 of this subchapter and the testing requirements for the categories and classes of breeding facilities and release sites established in §§65.90-65.93 of this subchapter.

         As noted previously, the new rule proposed herein, if adopted, would replace the emergency rules adopted on October 5. The proposed new rule differs from the emergency rule as follows:

1. In subsection (a)(1) of the emergency rule, a DMP facility is described as “a property (including the pen in which deer are temporarily detained for breeding purposes and the high-fenced acreage to which the deer are released).” This is technically incorrect. In TWIMS (defined in §65.90 of this title as the “department’s Texas Wildlife Information Management Services (TWIMS) online application”), each DMP property gets one facility identification for the enclosure (pen) in which deer are temporarily detained and one facility identification for surrounding acreage to which the deer are released. To avoid confusion, the proposed new rule would establish that the word “facility” as used in the rule text means the DMP pen.

2. In subsection (b) of the emergency rule, the department set forth the various requirements and restrictions for Level 2 and Level 3 DMP facilities. Level 1 DMP facilities were not addressed because the Level 1 DMP category is a default value, consisting of all DMP facilities that either do not receive breeder deer at all or received breeder solely from TC 1 breeding facilities (and did not receive any deer from a Class II or Class III release site).  As a result, the acreage to which deer are released from those facilities are Class 1 release sites and no CWD testing is required under §§65.90-65.93 of this subchapter.

3. Subsection (b)(4) of the emergency rule imposed tagging requirements for deer introduced to a Level 3 DMP facility or released on a Class III release site. The department has determined that because paragraphs (1) – (3), (5) and (6) address the assignment of DMP category designations, paragraph (4) interrupts that process, since it addresses a different topic; therefore, in the proposed new rule  the tagging requirements from subsection (b)(4) of the emergency rule are designated as subsection (b)(8).

         Proposed new §65.94(a) would set forth two general provisions.

         Proposed new §65.94(a)(1) would identify exactly what is meant by “DMP facility.” A DMP facility is an enclosure in which deer are temporarily detained for breeding purposes permitted under the provisions of Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP)). The provision is necessary in order to prevent any ambiguity arising from the use of the term “DMP facility.”

         Proposed new §65.94(a)(2) would define “status” as “the level of testing required by this division for any facility registered in TWIMS (deer breeding facility, trap site, release site, or DMP facility).” The definition of “status” is necessary because the status of any given facility determines the testing and movement requirements that apply to the facility and because it is necessary to clarify that the term applies to all types of permits authorizing the possession of live deer. The proposed new rule would also establish that the highest status for DMP facilities is Level 1 and the lowest status is Level 3, which is necessary to prevent potential misinterpretation. The designation of DMP facility status will also provide consistency with the §§65.90-65.93 of this subchapter, regarding Chronic Wasting Disease – Movement of Breeder Deer, which designate a Transfer Category (TC) status (TC 1, TC 2, TC 3) for deer breeding facilities and a status for release sites (Class I, II, III). Under §§65.90-65.93 of this subchapter, the lower number is the higher status. For example, for deer breeding facilities, a TC 1 is the highest status.  For release sites, Class I is this highest status.

         Proposed new §65.94(b) would set forth several provisions specific to the acquisition and transfer of deer for DMP purposes.

         Proposed new §65.94(b)(1)-(7) would set forth the status (and therefore, the testing requirements) for release sites for deer from DMP facilities based on the status of the source of deer obtained for DMP purposes.

         Proposed new subsection (b)(1) would stipulate that a DMP facility that is not a Level 2 or Level 3 DMP facility is a Level 1 DMP facility. Because the status of a deer breeding facility or a release is not impacted by receiving deer from a Level 1 DMP facility, no additional provisions are needed to address the impact of deer being held in a Level 1 DMP facility.

         Proposed new subsection (b)(2) would stipulate that a DMP facility that receives deer from a Class II release site or TC 2 breeding facility is a Level 2 DMP facility, unless the DMP facility receives deer from a TC 3 breeding facility or Class III release site.

         Proposed new subsection (b)(3) stipulates that a DMP facility receiving deer from a TC 3 breeding facility or Class III release site is a Level 3 DMP facility and that the release site to which the deer are liberated from the DMP pen becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year (the first day of lawful deer hunting).

         Proposed new subsection (b)(4) would stipulate that if a breeder deer is transferred from a TC 3 breeding facility to a Level 1 or 2 DMP facility, the DMP facility immediately becomes a Level 3 DMP facility and the release site to which the deer are liberated from the DMP pen becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year.

         Proposed new subsection (b)(5) would provide that if a breeder deer is transferred from a TC 2 breeding facility to a Level 1 DMP facility, the DMP facility immediately becomes a Level 2 DMP facility and the release site to which with deer are liberated from the DMP facility becomes a Class II release site beginning on the Saturday nearest to September 30 of the following year (the first day of lawful deer hunting), unless the release site is or becomes a Class III release site pursuant to other provisions of this division.

         Proposed new subsection (b)(6) would provide that if a breeder deer is transferred to a deer breeding facility from a DMP facility of lower status, the breeding facility receiving the breeder deer automatically assumes the numeric status of the DMP facility. For example, if a breeder deer is transferred to a TC 2 breeding facility from a Level 3 DMP facility, the deer breeding facility becomes a TC 3 breeding facility. Proposed new subsection (b)(7) would provide that a DMP facility automatically becomes a Level 3 DMP facility if deer are introduced to the DMP facility from a Tier 1 facility. (A Tier 1 facility is a facility that has a direct connection to a CWD-positive facility, and is defined in §65.90(21) of this subchapter).

         Proposed new §65.94(b)(8) would prohibit the introduction of a breeder deer into a Level 3 DMP facility unless the deer is tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear. (RFID and NUES ear tags are defined in current §65.91.) Proposed new §65.94(b)(8) would also prohibit the release of a breeder deer onto a Class III release site unless the deer is tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear. A Level 3 DMP facility is a highest risk DMP facility. Similarly, deer within a Class III release site are at a higher risk for CWD. Therefore, the department believes that breeder deer introduced into a Level 3 DMP facility or released onto a Class III site should be readily identifiable for purposes of subsequent CWD testing. Therefore, the proposed new rule would require such deer to be ear-tagged prior to release.

2. Fiscal Note.

         Clayton Wolf, Wildlife Division Director, 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 state and local governments as a result of enforcing or administering the rule as proposed, as department personnel currently allocated to the administration and enforcement of the permit programs affected will continue administer and enforce the rules as part of their current job duties.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be a reduction of the probability of CWD being spread from facilities where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and ensuring the continued beneficial economic impacts of hunting in Texas.

         (B) There could be adverse economic impact on persons required to comply with the rule as proposed.

         As noted previously, a DMP allows the introduction of breeder deer into a DMP facility for purposes of propagation.  Except for fawns born in a DMP facility during the permit year, no DMP facility may contain more than 1 buck deer and 20 doe deer.  Also, deer may be introduced to DMP facility  beginning on September 1 and no later than the breeding chronology  for the ecoregion in which the DMP facility is located, which ranges from October 21 (Gulf Prairies and Marshes) to December 14 (South Texas Plains). A person seeking to engage in DMP activities, must obtain a new DMP permit each year. Deer held in a DMP facility must be allowed to leave the DMP facility by no later than 45 days prior to the trapping deadline of the subsequent DMP trapping season for the ecoregion in which the DMP facility is located, which ranges from September 6 (Gulf Prairies and Marshes) to October 30 (South Texas Plains), or a date specified in the permit.

         Upon conclusion of DMP activities, a buck introduced into the DMP pen from a deer breeding facility may be returned to the originating deer breeding facility, moved to another deer breeding facility, or released. All other deer held in the DMP facility must be released to the adjoining high-fenced acreage.

         The proposed new rule imposes no new testing requirements in addition to those imposed on deer breeding facilities and release sites by §§65.90-65.93 of this subchapter. While there are no testing requirements directly imposed on DMP permittees during the temporary detention of deer pursuant to a DMP permit, the release of breeder deer obtained from a TC 2 or TC 3 deer breeding facility or deer from a Class II release site (via Triple T permit) could result in additional testing requirements for the DMP acreage (the high-fenced acreage in which the DMP facility is located) to which the DMP deer are released. There also could be testing requirements for a deer breeder who acquires or re-acquires a breeder buck from a DMP facility of lower status than the receiving deer breeding facility since the receiving facility assumes the status, if lower, of the originating facility. There would be no additional testing requirements as a result of DMP activities if the DMP facility receives no breeder deer and no deer via Triple T permit from a Class II release site, or if the DMP facility only receives breeder deer and deer via Triple T permit from deer breeding facilities and release sites that have a status that is equal to or higher than the DMP facility. However, if a release site or deer breeding facility receives deer from a DMP facility that has lower status than the receiving deer breeding facility or release site, the deer breeding facility or release site could incur additional costs associated with CWD testing.

         With regard to testing, if a release site becomes a Class II release site as a result of the introduction of deer onto the release site following DMP activities, under the provisions of §65.90-65.93 of this subchapter the following number of deer would have to be tested for CWD in the following year: 50 percent of the number of breeder deer released at the site between the last day of lawful deer hunting at the site in the previous year and the last day of lawful deer hunting at the site in the current year, or 50 percent of all hunter-harvested deer, as well as 50 percent of any hunter-harvested deer that were released breeder deer, which may be counted to satisfy the total testing requirement.

         If a release site becomes a Class III release site as a result of the introduction of deer onto the release site following DMP activities, under the provisions of §65.90-65.93 of this subchapter the following number of deer would have to be tested for CWD in the following year: 100 percent of all hunter-harvested deer or one hunter-harvested deer per breeder deer released between the last day of lawful deer hunting at the site in the previous year and the last day of lawful deer hunting. The exact number of deer that must be tested at Class II and Class III release sites would depend on the number of hunter-harvested deer and the number of breeder deer released on the property.

         The estimated cost for each test and the cost of compliance for deer breeders is as specified in the discussion of the proposed rule’s impact on small and micro-business later in this preamble.

         (C) There could be adverse economic impact on small businesses and microbusinesses required to comply with the rule as proposed.

         Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), 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. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

         Although many DMP permittees engage in the for-profit sale of the opportunity to hunt deer that have been held under a DMP and subsequently liberated, Parks and Wildlife Code, §62.021, prohibits the sale, offer for sale, purchase, offer to purchase, or possession after purchase of a live game animal, but makes an exception for activities conducted under a deer breeder permit which allows the purchase and sale of deer. Therefore, the department has determined that the since activities pursuant to a DMP permit are statutorily not for profit, the proposed rulemaking does not impose any adverse economic impacts from the perspective of any DMP permittee’s status as a for-profit enterprise, be it a small business or microbusiness or not.

         Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to “engage in the business of breeding breeder deer in the immediate locality for which the permit was issued” and to “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation.” As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer.

         Since the rule as proposed could impact the ability of a deer breeder to engage in certain activities undertaken to generate a profit, the proposed rule may have an adverse impact on deer breeders. However, those impacts would result from a deer breeder’s receipt of deer from a DMP facility of lower status than the breeder facility. It should be emphasized that it is unlikely that a deer breeder would seek to introduce a deer of lower status into a deer breeding facility.

         It should also be noted that the variety of business models utilized by deer breeders makes meaningful estimates of potential adverse economic impacts difficult. Although a deer breeder has the permit privilege to buy and sell breeder deer and many deer breeders participate in a market for breeder deer, other deer breeders are interested only in breeding and liberating deer on their own property for hunting opportunity. Once a breeder deer is liberated, it cannot be returned to a breeding facility and assumes the same status as all other free ranging deer. Thus, if the deer breeder is engaged primarily in buying and selling deer, the potential adverse economic impact is greater than that for a deer breeder who engages in deer breeding activities primarily for purposes of release onto that person’s property. The department does not require deer breeders to report the buying or selling prices of deer. However, publicly available and anecdotal information indicates that sale prices, especially for buck deer, may be significant. The sale price for a single deer may range from hundreds of dollars to many thousands of dollars.

         It should also be noted that some aspects of this analysis are based on anticipated marketplace behavior which cannot be accurately predicted. In addition, to the extent that any marketplace analysis can be conducted, it is difficult, if not impossible, to accurately separate and distinguish marketplace behavior that is the result of the proposed rules from marketplace behavior that is the result of the discovery of CWD. For reasons unrelated to the regulations, it is possible, perhaps even likely, that breeders and release site owners would be reluctant to acquire a breeder deer from a facility with a close relationship (as indicated by the facility’s status) to a facility at which CWD has been detected.

         For deer breeders, the department has determined that for TC 1 facilities there will likely be no adverse economic impact on sales as a result of the proposed new rule, so long as the TC 1 facility does not receive a breeder buck deer from a DMP facility of a lower status. Under §§65.90-65.93 of this subchapter, only those breeding facilities that are not Tier I facilities and have obtained a “fifth-year” or “certified” status from TAHC, are considered TC 1 facilities.  In order to maintain “fifth year” or “certified” from TAHC, such facilities may receive deer only from other “fifth-year” or “certified” breeding facilities. As a result, transfers of breeder deer from TC 1 facilities are subject to the fewest restrictions under §§65.90-65.93 of this subchapter. Therefore, breeder deer from a TC 1 facility can more easily be sold to other breeders or to landowners for purposes of liberation on a release site. In addition, TC 1 facilities are already subject to monitoring and testing at a higher level. Department records indicate that there are currently 63 TC 1 facilities in the state.

         If a TC 1 deer breeding facility becomes a TC 2 facility as a result of receipt of a breeder buck deer from a DMP facility, the adverse economic impact of the proposed new rule would consist of the cost of the additional testing requirements (described in more detail later in this preamble) and possible loss of sales to TC 1 facilities and Class I release sites. The change in status would not prohibit the transfer of breeder deer by an affected facility, but because of the change (lowering) in status resulting from the proposed new rules, it can be assumed that TC 1 facilities will be less likely destinations for breeder deer coming from DMP facilities of lower status.

         Department records indicate that there are currently 759 TC 2 facilities in the state, and that in the last year, 528 of them transferred breeder deer to facilities that are now TC 1 or Class I release sites. The most breeder deer transferred from any single breeding facility was 175, but the overwhelming majority of transfers involved 10 or fewer deer. If a TC 1 deer breeding facility’s status is lowered to TC 2 as a result of the receipt of a breeder buck deer from a Level II DMP facility, the impact to the deer breeder could include the loss of sales and any attendant profit from the sale of deer due to the deer breeder’s lower status. However, as noted above, a TC 1 facility is not a likely destination for a deer from a DMP facility of lower status.

         For facilities that become TC 3 facilities as a result of acquiring breeder deer from a Level 3 DMP facility, the adverse economic impact of the proposed new rules would consist of the cost of the additional testing requirements and possible loss of sales to TC 1 and TC 2 facilities and Class I and Class II release sites. Because the proposed new rule would cause any deer breeding facility that accepts deer from a DMP facility of lower status to assume the status (and regulatory obligations, such as testing) of that originating facility, it can be assumed that higher status facilities and release sites will be less likely destinations for breeder deer coming from facilities of lower status.

         Because the issuance period for DMPs had not concluded as of the submission of the proposed new rule, the department cannot provide a definitive value for the number of DMPs issued for the 2015-16 permit year; however, in the 2014-2015 permit year, 168 DMPs were issued and the final value for the current year is expected to be similar. Of the permits issued thus far for this year, 111 did not involve breeder deer. Four DMP facilities have received breeder deer only from a TC 1 deer breeding facility. Forty-three DMP facilities have received breeder deer from a TC 2 deer breeding facility. One DMP facility has received deer from a TC 3 breeding facility.

         With regard to the degree of impact due to possible loss of sales, the department does not require holders of deer breeder permits to disclose the dollar values of sales and purchases of breeder deer; therefore, an exact quantification of the possible impact of the proposed new rule on deer breeding facilities due to lost sales cannot be calculated. However, based on public and anecdotal information, such impact could be from few hundred dollars or less per deer or to thousands of dollars per deer.

Testing Costs

         In all cases, the costs to persons required to comply, as well as to any small or microbusiness affected by the proposed new rule, would consist of the cost of CWD testing. The cost of a CWD test administered by the Texas Veterinary Medicine Diagnostic Lab (TVMDL) on a sample collected and submitted by a DMP permittee is a minimum of $46, to which is added a $6 submission fee (which may cover multiple samples submitted at the same time). If a whole head is submitted to TVDML there is an additional $20 sample collection fee, plus a $20 disposal fee. Thus, the fee for submitting an obex or obex/medial retropharyngeal lymph node pair would be $52, plus any veterinary cost (which the department cannot quantify) and the fee for submitting an entire head for testing would be $92. Therefore, the department estimates that the direct economic impact of the proposed new rule on persons required to comply would be between $52 and $92 per deer per year for each permittee. If the sample is collected, fixed, and submitted by a private veterinarian, the cost could be higher. The cost to any person, small business or microbusiness would be the cost of a CWD test multiplied by the number of deer required to be tested.

Alternatives Considered

         The department considered several alternatives to achieve the goals of the proposed new rule while reducing potential adverse impacts on small and micro-businesses and persons required to comply. The department considered proposing no rule. This alternative was rejected because the presence of CWD in the state is not hypothetical, but has been confirmed and presents an actual, direct threat to free-ranging and farmed cervid populations and the economies that depend upon them. A regulation that clearly sets out prudent and sensible restrictions on the regulated community is more likely to achieve the desired result of stemming the spread of CWD than having no regulations. The department concluded that the need to protect the wildlife resources that sustain the state’s annual multi-billion-dollar hunting industry outweighs the temporary adverse impacts to small and micro-businesses and persons required to comply.

         The department also considered, in lieu of a regulatory response, the alternative of prohibiting the transfer of breeder deer to DMP facilities except from TC 1 facilities. This alternative was rejected because it would result in disruption of the bulk of interactions between deer breeders and DMP holders, which, with proper monitoring, would not be unnecessary.

         (D) 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 result in direct impacts to local economies.

         (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 new rules. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.

5. Statutory Authority.

         The new rule is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure, and Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1), and  §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

         The proposed new rule affects Parks and Wildlife Code, Chapter 43, Subchapters C, R and R-1, and Chapter 61.

         §65.94. Chronic Wasting Disease — Deer Management Permit Provisions.

                 (a) General Provisions.

                         (1) A DMP facility is an enclosure in which deer are temporarily detained for breeding purposes permitted under the provisions of Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP)).

                         (2) For the purposes of this section, “status” means the level of testing required by this division for any facility registered in TWIMS (deer breeding facility, trap site, release site, or DMP facility). For the levels of DMP facilities established in this section, the highest status is Level 1 and the lowest status is Level 3.

                 (b) Special Provisions.

                         (1) A DMP facility that is not a Level 2 or Level 3 DMP facility is a Level 1 DMP facility.

                         (2) A DMP facility that receives deer from a Class II release site or a TC 2 breeding facility is a Level 2 DMP facility unless the DMP facility receives deer from a TC 3 breeding facility or Class III release site.

                         (3) A DMP facility that receives deer from a Class III release site is a Level 3 DMP facility.

                         (4) If a breeder deer is transferred from a TC 3 breeding facility to a DMP facility, the DMP facility immediately becomes a Level 3 DMP facility and the release site to which the deer are liberated from the DMP pen becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year.

                         (5) If a breeder deer is transferred from a TC 2 breeding facility to a Level 1 DMP facility:

                                  (A) the DMP facility immediately becomes a Level 2 DMP facility; and

                                  (B) the release site to which the deer are liberated from the DMP pen becomes a Class II release site beginning on the Saturday nearest to September 30 of the following year, unless the release site is or becomes a Class III release site pursuant to other provisions of this division.

                         (6) If a breeder deer is transferred to a deer breeding facility from a DMP facility of lower status, the deer breeding facility receiving the breeder deer automatically assumes the numeric status of the DMP facility. For example, if a breeder deer is transferred to a TC 2 breeding facility from a Level 3 DMP facility, the deer breeding facility becomes a TC 3 breeding facility.

                         (7) A DMP facility automatically becomes a Level 3 DMP facility if deer are introduced to the DMP facility from a Tier 1 facility.

                         (8) No person may introduce a breeder deer into a Level 3 DMP facility or allow the release of a breeder deer on a Class III release site unless the deer has been tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear.

         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

Work Session Item No. 15
Presenter: Corky Kuhlmann

Work Session
Request for Recreational Trail Easement – Tarrant County - Inland Fisheries District Office - Request Permission to begin Public Notice and Input Process
January 20, 2016

I.       Executive Summary:  Texas Parks and Wildlife Department (TPWD) staff has a request for a Right of Way Trail and Maintenance Easement at the Fort Worth Fish Hatchery.

II.     Discussion:  TPWD has a request from the City of Fort Worth (CFW) for a trail easement along the eastern portion of the hatchery property along the West Fork of the Trinity River.

The CFW Parks and Recreation Department has plans to create a Lake Worth Regional Park, a linear park to encompass the lake and provide high quality recreational amenities and cultural hubs, as well as to connect communities, resources and amenities with pathways, greenways and trails. After considerable planning, the route chosen would cross TPWD property with the trail portion of the Lake Worth Regional Park.

Staff would like to begin the process of providing public notice and obtaining public input regarding the granting of an easement to the CFW along the Lake Worth Regional Park.

Work Session Item No. 15
Exhibit A

Location Map
Tarrant County

Work Session Item No. 15
Exhibit B

Vicinity Map
Fort Worth Fish Hatchery

Work Session Item No. 15
Exhibit C

Site Map
Fort Worth Fish Hatchery

Work Session Item No. 18
Staff: Ann Bright

(Executive Session Only)
Update on Regulatory Litigation
January 20, 2016

I.       Executive Summary:  Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Commission regarding pending litigation impacting TPWD’s regulatory authority, specifically, the following pending lawsuits:

• Ken Bailey and Bradly Peterson v. Carter Smith, Executive Director, Clayton Wolf, Wildlife Division Director, Mitch Lockwood, Big Game Program Director and Texas Parks and Wildlife Department, Cause No. D-1-GN-15-004391, in the District Court of Travis County, Texas.
• State of Texas v. Chambers-Liberty Counties Navigation District, Each in his Official Capacity: Terry Haltom as CLCND Commissioner, Allen Herrington as CLCND Commissioner, Kenn Coleman as CLCND Commissioner, Ken Mitchell a CLCND Commissioner, and Dave Wilcox as CLCND Commissioner, and Sustainable Texas Oyster Resources Management, LLC., Cause No. D-1-GN-15-003093, in Travis County District Court.
• Potential litigation and/or involvement with current litigation relating to actions of the National Marine Fisheries Service (NMFS), an agency within the National Oceanic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce, in connection with the regulation of red snapper.

Work Session Item No. 19
Staff: Ann Bright

Work Session
Chronic Wasting Disease Legal Strategy
January 20, 2016