Texas Parks and Wildlife Commission

November 4, 2015

Work Session

Work Session

Wednesday, November 4, 2015
9:00 a.m.

Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road, Austin, TX  78744

T. Dan Friedkin, Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Work Session held August 19, 2015

Approval of the Previous Minutes from the Annual Public Hearing held August 19, 2015

    Land and Water Plan

  1. Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan - Carter Smith
    • Internal Affairs Update
    • Stocking Report
    • Snake Harvest Working Group
    • Hunter Education
    • Public Hunting Land Acres
    • Monarch State Plan
    • Deepwater Horizon Oil Spill Status
  2. Financial

  3. Fiscal Year (FY) 2015 Internal Audit Update and FY 2016 Internal Audit Plan – Cindy Hancock (Action Item No. 4)
  4. Natural Resources

  5. 2016-2017 Statewide Recreational and Commercial Fishing Proclamation Preview - Ken Kurzawski, Jeremy Leitz
  6. 2016-2017 Statewide Hunting Proclamation Preview – Alan Cain, Kevin Davis, Dave Morrison
  7. Aerial Wildlife Management
    • Request Permission to Publish Proposed Rule Changes in the Texas Register – Mitch Lockwood
    • Petition for Rulemaking Regarding Impact on Migratory Birds – Kevin Davis
  8. Chronic Wasting Disease Update – Clayton Wolf
    • Recommended Adoption of Interim Proposed Rules (Action Item No. 6)
    • Briefing on Potential Carcass Movement Restriction Rules
    • Briefing on Emergency Trap, Transport and Transplant (TTT), Trap, Transport Process (TTP) and Deer Management Plan (DMP)
  9. State Parks

  10. State Park Rules – Request Permission to Publish Proposed Rule Revisions in the Texas Register – Kevin Good
  11. Land Conservation

  12. Land Acquisition – Matagorda County – Approximately 6554 Acres on the Matagorda Peninsula – Ted Hollingsworth (Action Item No. 7)
  13. Grant of Utility Easement – Brazoria County- Approximately 0.4 Acres at the Justin Hurst Wildlife Management Area - Ted Hollingsworth (Action Item No. 8)
  14. Grant of Utility Easement- Brazoria County – Approximately 37 Acres at the Justin Hurst Wildlife Management Area – Ted Hollingsworth (Action Item No. 9) WITHDRAWN
  15. Boundary Agreement Including Exchange of Real Estate – Presidio County – Big Bend Ranch State Park – Request Permission to begin the Public Notice and Input Process - Ted Hollingsworth
  16. Acceptance of Land Donation – Cameron County – Inholdings Totaling Approximately 15 Acres at Boca Chica State Park – Ted Hollingsworth (Action Item No. 10)
  17. Land Sale – Brown County – Approximately 19 Acres at Muse Wildlife Management Area – Request Permission to begin the Public Notice and Input Process – Corky Kuhlmann
  18. Land Acquisition – Cochran County – Approximately 5 Acres at Yoakum Dunes Wildlife Management Area – Corky Kuhlmann (Action Item No. 11)
  19. Acceptance of Land Donation – Bexar County – Approximately 232 Acres at Government Canyon State Natural Area- Request Permission to begin the Public Notice and Input Process – Corky Kuhlmann
  20. Executive Session

  21. Texas-Mexico Border Security and Deployment of Department Personnel (Operation Strong Safety) – Colonel Craig Hunter, Ann Bright (Executive Session Only)
  22. Update on Regulatory Litigation – Ann Bright (Executive Session Only)
  23. Personnel Matters – Performance Evaluation of TPWD Executive Director – Chairman T. Dan Friedkin (Executive Session Only)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
TPWD Land and Water Resources Conservation and Recreation Plan
November 4, 2015

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: Cindy Hancock

Work Session
Fiscal Year (FY) 15 Internal Audit Plan Update
and Proposed FY16 Internal Audit Plan
November 4, 2015

I.       Executive Summary:  Staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year 2015 (FY15) Internal Audit Plan and ongoing or completed external audits, provide the methodology used to develop the proposed FY16 Internal Audit Plan, and recommend adoption of the motion to approve the proposed FY16 Internal Audit Plan.

II.     Discussion:

  1. Staff will provide an update on the TPWD FY15 Internal Audit Plan as well as a briefing of any external audits that have been recently completed and/or are ongoing.
  2. Staff will discuss the methodology used in the development of the proposed FY16 Internal Audit Plan.
  3. Staff will recommend adoption of the motion to approve the proposed FY16 Internal Audit Plan.  

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

“The Texas Parks and Wildlife Commission approves the TPWD FY16 Internal Audit Plan as listed in Exhibit A.”

Attachments – 1

  1. Exhibit A – Proposed TPWD FY16 Internal Audit Plan

Work Session Item No. 2
Exhibit A

Proposed TPWD FY16 Internal Audit Plan
Projects Budgeted Hours
FY15 Carry Over Projects 1486
FY16 New Projects  
Fiscal Control Audits of Selected Law Enforcement Offices 650
Fiscal Control Audits of Selected State Parks 600
Travel Voucher Audit 700
Data Integrity Audit of Selected Information Systems 700
Property Audit 800
Audit of Selected Grants 530
FY16 Follow-up of Internal and External Audit Recommendations 400
Special Projects 400
Total 6266

List of Alternative Projects
Contracting Audit


Work Session Item No. 3
Presenter: Ken Kurzawski
Jeremy Leitz

Work Session
2016-2017 Statewide Recreational and Commercial Fishing Proclamation Preview
November 4, 2015

I.       Executive Summary:  This item apprises the Texas Parks and Wildlife Commission (the Commission) of potential changes to recreational and commercial fishing regulations for the 2016-17 season.

II.        Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking freshwater and saltwater fisheries resources is delegated to the  Commission under Parks and Wildlife Code, Chapters 61 (Uniform Wildlife Regulatory Act), 66 (Fish), 67 (Nongame Species), 76 (Oysters), 77 (Shrimp), and 78 (Mussels, Clams, and Crabs).  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 fisheries resources of the state.

Attachments – 1

  1. Exhibit A – Potential Changes

Work Session Item No. 3
Exhibit A

Potential Changes to Fisheries Regulations 2016-2017

Inland Fisheries

  • Modify harvest regulations for largemouth bass on Lake Naconiche (Nacogdoches County);
  • Modify harvest regulations for largemouth bass in Sabine River (including Cow and Adams bayous), Neches River, and Taylor, Big Hill, and Hillebrandt bayous (Jefferson and Orange counties);
  • Modify harvest regulations for channel and blue catfish bass on Lake Tawakoni (Hunt; Raines, and Van Zandt counties);
  • Remove special harvest regulations for smallmouth bass on Lake Meredith (Hutchinson, Moore, and Potter counties);
  • Remove special harvest regulations for largemouth bass on Nelson Park Lake (Taylor County); and
  • Remove statewide harvest regulations for saugeye and combine with walleye.

 Coastal Fisheries

  • Clarify maximum size limits for black drum.

Work Session Item No. 4
Presenter: Alan Cain

Work Session
2016-2017 Statewide Hunting Proclamation Preview
November 4, 2015

I.       Executive Summary:  This item apprises the Texas Parks and Wildlife Commission (Commission) of potential changes to hunting regulations for the 2016-17 season.

II.        Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking game animals and game birds is delegated to the TPW Commission under Parks and Wildlife Code, Chapter 61 (Uniform Wildlife Regulatory Act).   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.

Attachments – 1

  1. Exhibit A – Potential Changes

Work Session Item No. 4
Exhibit A

Potential Changes to Hunting Regulations 2016-2017

White-tailed Deer

  • Elimination of Antlerless and Spike-buck Control Permit rule;
  • Addition of “unbranched antlered deer” definition;
  • Replacement of “Special Late Antlerless and Spike-buck Season” with “Special Late Season” to accommodate inclusion of “unbranched antlered bucks”;
  • Accommodation for the take of antlerless deer without a permit on U.S. Forest Service Lands during youth-only seasons;
  • Implementation of a full white-tailed deer season (and archery-only open season) in 14 Panhandle counties;
  • Implementation of additional “doe days” in 21 counties and portions of two counties;
  • Implementation of muzzleloader-only open season in 24 additional counties.

Migratory Game Bird Regulations

  • Overview of new migratory game bird regulations process and potential changes as a result of federal action.

Miscellaneous Housekeeping-type Changes

  • Clarification of general rules regarding antlerless deer permit applicability.

Work Session Item No. 5
Presenter: Mitch Lockwood

Work Session
Permits for Aerial Management of Wildlife and Exotic Species
November 4, 2015

I.       Executive Summary: This item (1) seeks permission to publish proposed amendments to the Texas Parks and Wildlife Department (TPWD) rules governing permits for the aerial management of wildlife and exotic species; and, (2) presents issues raised in a petition for rulemaking regarding aerial wildlife management.

Proposed Amendments.  The proposed amendments would:

  • require a map of any property subject to a permit to be submitted with the required Landowner Authorization (LOA) for the property;
  • allow expired permits to be renewed regardless of how much time has lapsed since the previous permit’s expiration date;
  • require quarterly reports to be submitted electronically, including the driver’s license or hunting license number of all gunners;
  • clarify the persons required to be in possession of a hunting license;
  • make permit denial provisions consistent with other department rules;
  • eliminate emergency LOAs; and
  • eliminate requirement that an LOA be effective for at least one year to allow for a shorter duration when requested or otherwise appropriate.

Petition for Rulemaking.  On May 8, 2015, the department received a petition for rulemaking requesting that the Commission amend the TPWD’s rules governing aerial management of wildlife and exotic species. The petitioner was concerned that aircraft being used to take feral hogs was disturbing and harassing migratory birds in coastal counties. As provided in TPWD’s regulations regarding petitions for rulemaking, the petition was forwarded to commissioners, along with staff’s recommendation. A commissioner asked that the petition be placed on the agenda for discussion at a future commission meeting. Staff will brief the commission on the issues raised in the petition,

II.        Discussion: Under federal law (16 U.S.C. §742j-1, commonly referred to as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or harass any bird, fish, or other animal from aircraft except for certain specified reasons, including protection of wildlife, livestock, and human life as authorized by a federal or state issued license or permit. Under Parks and Wildlife Code, §43.109, the Commission is authorized to make regulations governing management of wildlife or exotic animals by the use of aircraft. Accordingly, TPWD rules at 31 TAC Chapter 65, Subchapter F, govern permits for the aerial management of wildlife and exotic species by use of aircraft. TPWD staff have analyzed the current TPWD rules with an eye towards removing problematic provisions, streamlining the process, clarifying regulatory language to enhance compliance and enforcement, and achieving greater administrative efficiencies. The proposed amendments are intended to accomplish these goals.

Attachments – 1

  1. Exhibit A – Proposed Amendments

Work Session Item No. 5
Exhibit A

PERMITS FOR AERIAL MANAGEMENT OF WILDLIFE AND EXOTIC SPECIES

         §65.151. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) Aerial Management Permit — A permit issued by the department to count, photograph, relocate, capture, or take[hunt] wildlife or exotic animals by the use of aircraft.

                 (2) Applicant — An individual who files an application for a permit to manage wildlife or exotic animals by use of aircraft.

                 [(3) Convicted — A judgment of guilty, plea of guilty or nolo contendre, or placed on probation or deferred adjudication.]

                 (3)[(4)] Department — The Texas Parks and Wildlife Department or a specifically authorized employee of the department.

                 (4) FAA—the Federal Aviation Administration of the United States Department of Transportation.

                 (5) Gunner—A qualified landowner, agent or subagent[an individual] who captures, takes, shoots, or [uses a firearm, tranquilizer gun, or net gun to capture, take, shoot, or] attempts to capture, take [or shoot] wildlife or exotic animals from an aircraft.

                 (6) Landowner’s authorization — Signed consent from the landowner or [the landowner’s authorized] agent to manage a specified number of wildlife or exotic animals from an aircraft on certain property.

                 (7) Landowner’s authorized agent (agent)—A person authorized by a landowner to act on behalf of the landowner.

                 (8)[(7)] Observer — A qualified landowner, agent, or subagent[Any person]other than the pilot or gunner[,] who is on board an aircraft while wildlife or exotic animals are being counted, photographed, relocated, captured, or hunted.

                 (9)[(8)] On file — Approved and on file at the Austin headquarters of the department.

                 (10)[(9)] Permit — An aerial management permit.

                 (11)[(10)] Pilot — An individual who pilots an aircraft to count, photograph, relocate, capture, or [hunt] take wildlife or exotic animals.

                 [(11) Qualified landowner or landowner’s authorized agent — A person who contracts to be a gunner or observer and who has not:]

                         [(A) been convicted of, pleaded nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code that is a Class A misdemeanor or felony, not to include violations of Parks and Wildlife Code, Chapter 31; or]

                         [(B) been convicted, pleaded nolo contendere to, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 — 3378 (the Lacey Act).]

                 (12) Subagent — A person designated by an agent to act as a gunner or observer for the purpose of killing feral hogs or coyotes.

         §65.152. General Rules.

                 (a) A person who holds a permit under the authority of Parks and Wildlife Code, Chapter 43, Subchapter G, is authorized to engage in the management of wildlife and exotic animals by the use of aircraft only on land named in the landowner’s authorization. The permit shall be carried in aircraft when performing management by the use of aircraft.

                 (b) A pilot of an aircraft used for the management of wildlife or exotic animals must maintain a daily flight log and report. The daily flight log must be current and available for inspection by game wardens at reasonable times. Each permit holder and pilot shall comply with all FAA[Federal Aviation] regulations for the specific type of aircraft listed on their permit.

                 (c) It is lawful for a person who holds a permit under the authority of Parks and Wildlife Code, Chapter 43, Subchapter G, to contract with a qualified landowner, [or landowner’s authorized] agent, or subagent to act as a gunner or observer in the taking of depredating feral hogs or coyotes from a helicopter, provided [that] the permit holder[permittee] possesses a valid, properly executed landowner’s authorization describing the activity.

                 (d) A person commits an offense if:

                         (1) the person takes[hunts, shoots, shoots at, kills,] or attempts to take[kill] from an aircraft any wildlife or exotic animals other than wildlife or exotic animals authorized by the permit and landowner’s authorization;

                         (2) the person intentionally harasses [, disturbs, hazes, or buzzes] any wildlife or exotic animals by the use of an aircraft other than wildlife or exotic animals authorized in a permit and landowner’s authorization;

                         (3) the person participates in the take or attempted take of any wildlife or exotic animal other than depredating feral hogs or coyotes without having on his or her person a valid hunting license issued by the department;

                         [(3) the person acts as a gunner, observer, or pilot during a flight related to management of wildlife or exotic animals from an aircraft and the person has:]

                                  [(A) been convicted of, pleaded nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code that is a Class A misdemeanor or felony, not to include violations of Parks and Wildlife Code, Chapter 31; or]

                                  [(B) been convicted, pleaded nolo contendere to, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 — 3378 (the Lacey Act);]

                         (4) the person pilots an aircraft to manage wildlife or exotic animals without a valid pilot’s license as required by the FAA[Federal Aviation Administration];

                         (5) the person pays, barters, or exchanges anything of value to participate as a gunner or observer, except as may be otherwise provided in this subchapter;

                         (6) the person acting as a gunner or pilot under an aerial management permit takes or attempts to take any wildlife or exotic animals for any purpose other than is necessary  to protect or to aid in the administration [for the protection] of lands, water, wildlife, livestock, domesticated animals, human life, or crops, except that any wildlife or exotic animals, once lawfully taken pursuant to this subchapter may be sold if their sale is not otherwise prohibited;

                         (7) the person acting as a gunner or pilot [hunts], takes [kills, manages]or attempts to [hunt,] take [kill or manage] wildlife or exotic animals during the hours between 1/2-hour after sunset and 1/2-hour before sunrise;

                         (8) the person operates an aircraft for the management of wildlife or exotic animals and is not named as an authorized pilot in a permit;

                         (9) the person takes, captures, or kills more wildlife or exotic animals on properties than are specified in the landowner’s authorization; 

                         (10) the person uses a permit for the purpose of sport hunting; or

                         (11) the person otherwise violates a provision of this subchapter.

                 (e) These rules do not exempt any person from the requirement for other licenses or permits required by statute or rule of the commission.

                 (f) The department may waive the fee requirements of this subchapter for an employee of a governmental entity acting in the scope and course of official duties.

                 (g) A feral hog that has been released or liberated on a tract of land for the purpose of being hunted is not a depredating feral hog and may not be hunted by means of aircraft on that tract of land.

         §65.153. Application for Permit. An applicant for a permit shall complete and submit[place on file] an application on a form prescribed by the department. The application shall contain the description, including make, model, color, and registration number of each aircraft to be used. The name of each [individual] pilot shall[will] be shown exactly as it appears on the pilot’s [their state driver’s license, personal identification certificate issued by the Department of Public Safety, or the] FAA license, along with a current address and date of birth of the applicant (date of birth not applicable if corporation), Social Security number, and the name, address, hunting license number or driver’s license number, and date of birth of each pilot.

         §65.154.  Issuance of Permit; Renewal.

                 (a) A permit may be issued in the name of the applicant[an individual, partnership, or corporation for named pilots to count, photograph, relocate, capture, or hunt wildlife or exotic animals by the use of aircraft].

                 (b) Upon the filing of a properly executed application and payment of the fee specified by §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits), the department may issue a permit if:

                         [(1) the applicant, or any pilot named in the application, has not within one year immediately preceding the date of the application been convicted of any Class A Parks and Wildlife Code misdemeanor or Parks and Wildlife Code felony relating to the management of wildlife or exotic animals by the use of aircraft; ]

                         (1)[(2)] the applicant has not [knowingly] failed to disclose any material information required, or has not knowingly made any false statement regarding any material fact in connection with the application;

                         (2)[(3)] the applicant will use the permit only for the purpose of protecting or aiding in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops; and

                         (3)[(4)] the permit requested, in the judgment of the department[issuing official], will aid in the management of wildlife and exotic animals and will not have a deleterious effect on indigenous species.

                 (c) A permit holder may request renewal of a permit by submitting to the department a properly executed renewal application on a form prescribed by the department, accompanied by the fee specified under §53.15 of this title.

                 (d) The department may refuse to issue to or renew a permit for any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:

                         (1) Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1;

                         (2) a provision of the Parks and Wildlife Code that is not described by paragraph (1) of this paragraph that is punishable as a Parks and Wildlife Code:

                                  (A) Class A or B misdemeanor;

                                 (B) state jail felony; or

                                  (iii) felony;

                         (3) Parks and Wildlife Code, §63.002; or

                         (4) the Lacey Act (16 U.S.C. §§3371-3378).

                 (e) The department may refuse to issue a permit to or renew a permit for any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from obtaining a permit or engaging in permitted activities.

                 (f) No person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication for, or assessed an administrative penalty for an offense listed in this section may act or contract to act as a gunner or observer for a permit holder.

         §65.156. Amendment of Permit.

                 (a) A permit may be amended following the completion and submission of a[When a permittee desires to have his permit amended, that person must file an amended application on the] form provided by the department. An application for amendment is subject to the same issuance criteria as the original application for permit. [In emergency situations, permit amendments and new landowner’s authorizations may be expedited by presenting completed forms to the game warden in the county where the management of wildlife or exotic animals is to be performed].

                 [(b) A game warden in the county where the land is located may approve the landowner’s authorization and cause the form to be delivered to the department office in Austin. In such emergency situations, the landowner’s authorization form will be considered on file when approved by the game warden.]

                 (b)[(c)] In situations involving only counting and photographing, the landowner’s authorization for management of wildlife or exotic animals is considered on file when received by the department[signed by both the permittee and landowner or landowner’s agent and placed in the mail to the department office in Austin prior to flight].

         §65.157. Renewal of Permit. A permittee requesting a renewal of a permit must file a properly executed application on a form prescribed by the department, together with the required fee[, at least ten days prior to the expiration of the current permit].

         §65.160. Landowner Authorization.

                 (a) Prior to managing wildlife or exotic animals, a permit holder must place on file a landowner’s authorization form for each individual ownership on which wildlife or exotic animals are to be managed. The landowner’s authorization form must be in the physical possession of the permit holder during all permitted activities. The landowner’s authorization form must be signed by the permit holder and the landowner or landowner’s authorized agent and shall include:

                         (1) the name, address, and phone number of the landowner;

                         (2) the name, address, and phone number of the authorized landowner’s agent, if applicable;

                         (3) the name and permit number of the permit holder[permittee];

                         (4) the farm or ranch name and specific location of the property;

                         (5) a map showing the exact boundaries of the property;

                         (6)[(5)] the specific kind and number of wildlife or exotic animals to be managed by use of aircraft and the reason why these animals should be managed;

                         (7)[(6)] if game animals or game birds are to be captured by the use of aircraft, the permit number of a valid permit issued under the provisions of Subchapter C of this chapter[a trap and transplant permit number issued by the Department’s Wildlife Division must be shown, if game animals or game birds are captured by the use of aircraft]; and

                         (8) a written statement signed by the landowner or the landowner’s agent confirming that the information provided by the landowner is true and correct.

                 (b) A landowner’s authorization for the management of wildlife or exotic animals shall be valid for the time period specified in the authorization or the life of the permit unless the permit expires without renewal or[,] is suspended or revoked[; or, if the landowner’s authorization specifies a certain time period, then the landowner’s authorization will be valid for that specified time].

                 [(c) A landowner’s authorization [for hunting ]shall be approved only for depredating animals and exotic animals.]

                 [(d) A landowner’s authorization will not be approved for non-indigenous wild animals except as authorized by the department when a specific wild animal(s) has escaped from captivity.]

                 (c)[(e)] A single landowner’s authorization form may be submitted by a group of landowners or by an association on behalf of such landowners. The landowner’s authorization form shall have attached a list of participating landowner names, ranch names, addresses, [and] acreage, and a map showing the exact boundaries of each property for each participating landowner. The landowner’s authorization may be signed by one authorized agent who represents the group of landowners or an association.

                 (d) The landowner or the landowner’s agent shall ensure that information included in the landowner’s authorization is true and correct.

         §65.161. Reports.

                 (a) The holder of a permit shall file with the department within 30 days following the end of each calendar quarter or on termination of the permit, whichever occurs first, a daily flight log and report, on a form prescribed by the department, showing:

                          (1) name, signature (or electronic affirmation of consent), and permit number of the permit holder;

                         (2) number and description of the wildlife or exotic animals managed under the permit;

                         (3) the landowner’s authorization control number issued by the department;

                         (4) the dates of authorized flights taken;

                         (5) the time of day an authorized flight is completed;

                         (6) type of management by use of aircraft performed;

                         (7) the name [and signature] of pilot(s); and

                         (8) the name, address, and hunting license or government-issued identification number of the gunner(s).

                 (b) Information required on the daily flight log and report shall be entered daily immediately upon completion of an authorized flight. Stopping to refuel does not constitute completion of a flight.

                 (c) The holder of a permit shall be required to file with the department a negative daily flight log and report, if there are no management flights for the calendar quarter.

                 (d) The reports required by this section shall be filed electronically.

         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. 6
Presenter: Clayton Wolf

Work Session
Chronic Wasting Disease Update
November 4, 2015

I.       Executive Summary: This item presents an update on the status of Texas Parks and Wildlife Department (TPWD) 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 item:

  • seeks adoption of proposed interim rules intended to aid in the detection and containment of chronic wasting disease (CWD) in free-ranging and captive deer populations. The proposed new interim rules would:
    • establish movement status for breeding facilities and release sites, predicated  on potential exposure to CWD and herd/testing status under TPWD rules and the rules of the Texas Animal Health Commission (TAHC);
    • set forth movement restrictions, testing requirements, and identification standards according to status;
    • provide for reassignment of status based on status of the source population; and
    • require all releases to take place within a high-fence environment.
  • provides an overview of emergency rules adopted on October 5, 2015 to address CWD within the context of permits to trap, transport, and transplant game animals and game birds (“Triple T” permits), permits to trap, transport, and process surplus deer (“TTP” permits), and deer management permits (DMP); and
  • includes a discussion of potential interstate/intrastate movement restriction rules for deer carcasses in future deer seasons.

II.     Discussion: 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. Since 2002, the department has tested more than 32,882 free-ranging deer in Texas for CWD, and cervid producers have submitted more than 12,759 test results to the department.

In July of 2012, TPWD’s concern about the emergence of CWD in Texas escalated when TPWD confirmed CWD in two mule deer taken in the Hueco Mountains in far West Texas. As a result, TPWD’s concerns about CWD were no theoretical. Based on recommendations from the CWD Task Force, TPWD adopted new rules in 2013 (37 TexReg 10231) to implement a CWD containment strategy in the area of the outbreak. The rules (31 TAC §§65.80-65.88), among other things, require deer harvested in a specific geographical area (the Containment Zone), to be presented at check stations to be tested for CWD.

On June 30, 2015, TPWD 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 chronic wasting disease (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; however, the results of an epidemiological assessment of all deer at the index facility should be available by the time of the meeting, which should afford greater resolution. In any case, within the last five years the index facility accepted deer from 30 other Texas deer breeders and transferred 835 deer to 147 separate sites (including 96 deer breeding facilities, 46 release sites, and two Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico).  TPWD estimates that more than 728 locations in Texas (including 384 deer breeders) either received deer from the index facility or received deer from a deer breeder who had received deer from the index facility.  At least one of those locations, a deer breeding facility in Lavaca County, was also confirmed to have a CWD positive white-tailed deer acquired from the index facility.

On August 18, 2015, TPWD adopted emergency rules (40 TexReg 5566) that are essentially identical to the proposed interim rules contained at Exhibit A. The proposed interim rules were published in the October 2, 2015, issue of the Texas Register (40 TexReg 6856). A summary of public comment on the proposed interim rules will be presented at the time of the hearing. On October 5, 2015, TPWD adopted emergency rules that address CWD within the context of permits to trap, transport, and transplant game animals and game birds (“Triple T” permits), permits to trap, transport, and process surplus deer (“TTP” permits), and deer management permits (DMP).

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, TPWD intends to review the interim rules, if adopted, following the close of the deer season and present the results of that review to the Texas Parks and Wildlife Commission (Commission) in the spring of 2016 for possible modifications.

III.    Recommendation: The staff recommends the Commission adopt the following motion:

The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §65.90-65.93, concerning Disease Detection and Response, with changes as necessary to the proposed text (located at Exhibit A) as published in the October 2, 2015 issue of the Texas Register (40 TexReg 6856). 

Attachments – 3

  1. Exhibit A – Proposed CWD/Deer Breeder Rules
  2. Exhibit B – Emergency CWD/Triple T Rules
  3. Exhibit C – Emergency CWD/DMP Rules

Work Session Item No. 6
Exhibit A

DEER BREEDER/CWD PERMIT RULES

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes new §§65.90 — 65.93, concerning Disease Detection and Response.  The proposed new rules will be constituted as new Division 2 within Chapter 65, Subchapter B, entitled Chronic Wasting Disease — Movement of Breeder Deer. The department wishes to emphasize that the proposed new rules, if adopted, would be an interim replacement for the current emergency rules adopted  on August 18, 2015 (40 TexReg 5566), (“emergency CWD rules”), which is necessary in order 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 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.

         Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of captive-raised deer within a facility for breeding purposes and the release of such deer into the wild. A deer breeder permit affords deer breeders certain privileges, such as (among other things) the authority to buy, sell, transfer, lease, and release captive-bred white-tailed and mule deer, subject to the regulations of the Commission and the conditions of the permit. Breeder deer may be purchased, sold, transferred, leased, or received only for purposes of propagation or liberation. There are currently 1,275 permitted deer breeders (operating more than 1,300 deer breeding facilities) in Texas.

Discovery of 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 chronic wasting disease (CWD).  Under the provisions of the Agriculture Code, §161.101(a)(6) CWD is a reportable disease.  A veterinarian, veterinary diagnostic laboratory, or person having care, custody, or control of an animal is required to report the existence of CWD to TAHC within 24 hours after diagnosis. 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 breeders and transferred 835 deer to 147 separate sites (including 96 deer breeding facilities, 46 release sites, and two Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico).  (A DMP is a permit issued by the department under rules adopted pursuant to Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, that allows the temporary possession of free-ranging white-tailed or mule deer for breeding purposes.) The department estimates that more than 728 locations in Texas (including 384 deer breeders) either received deer from the index facility or received deer from a deer breeder who had received deer from the index facility.  At least one of those locations, a deer breeding facility in Lavaca County, was recently confirmed to have a CWD positive white-tailed deer acquired from the index facility.

         The proposed new rules impose 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 new rules are a result of extensive 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).

Background Regarding CWD

         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 TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. Currently, the only test certified by the U.S. Department of Agriculture (USDA) for CWD must be conducted post-mortem by extracting and testing the obex (a structure in the brain) or medial retropharyngeal lymph node, although the department is actively collaborating with researchers to investigate possible efficacious live-animal tests that can be integrated into the state’s overall disease surveillance efforts.

         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 to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population, and there is evidence that hunters tend to avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either farmed or free-ranging cervid populations. The potential implications of CWD for Texas and its annual, multi-billion dollar ranching, hunting, real estate, tourism, and wildlife management-related economies could be significant, unless it is contained and controlled.

Previous CWD Rulemaking

         The department 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).)

         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 TAHC convened the CWD Task Force, comprised of wildlife-health professionals and cervid producers, to advise the department on the appropriate measures to be taken to protect white-tailed and mule deer in Texas. Based on recommendations from the CWD Task Force, the department adopted new rules in 2013 (37 TexReg 10231) to implement a CWD containment strategy in far West Texas. The rules (31 TAC §§65.80-65.88), among other things, require deer harvested in a specific geographical area (the Containment Zone), to be presented at check stations to be tested for CWD.

         The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas.  Since 2002, more than 32,882 “not detected” CWD test results were obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted 12,759 “not detected” test results as well. The intent of the proposed new rules is to reduce the probability of CWD being spread from facilities where it might exist and to increase the probability of detecting and containing CWD if it does exist.

Overview of Proposed Rules

         The proposed new rules therefore set forth specific CWD testing requirements for deer breeders, which would have to be satisfied in order to transfer deer to other deer breeders (or other captive-deer facilities), or for purposes of release. The new rules also impose CWD testing requirements on sites where breeder deer are liberated (release sites).

         One of the most effective approaches to managing infectious diseases and arresting the spread of a disease is to segregate suspicious individuals and populations from unexposed populations. As a matter of epidemiological probability, when animals from a population at higher risk of harboring an infectious disease are introduced to a population of animals at a lower risk of harboring an infectious disease, the confidence that the receiving population will remain disease-free is reduced.

         Therefore, in establishing testing and other requirements, the proposed rules classify breeding facilities and release sites based on the epidemiological likelihood that the breeder facility or release site will contain or spread CWD. In other words, the classifications are based on the relative level of risk for CWD associated with the breeding facility or release site. Breeding facilities are classified as Transfer Category 1 (TC 1), Transfer Category 2 (TC 2) or Transfer Category 3 (TC 3). TC 1 breeding facilities are facilities that are have a low risk for CWD and TC 3 facilities are facilities that have a higher risk for CWD. TC 1 facilities are considered the highest status breeding facilities under the proposed rules.  Similarly, release sites are classified as a Class I, Class II or Class III release site. As with breeding facilities, a Class I release site poses less risk and a Class III site poses more risk. Class I release sites are considered the highest status release sites.

         One factor in determining relative risk concerns a breeding facility’s participation in TAHC’s CWD Herd Certification Program.  See, 4 Tex. Admin. Code §40.3 (relating to Herd Status Plans for Cervidae). Participation in the TAHC CWD Herd Certification Program requires that breeding facilities comply with more stringent CWD testing, monitoring, and other requirements. Breeding facilities that have complied with the testing, monitoring, and other requirements of this program for five years or more are considered to be at the lowest risk for CWD. In evaluating risk, the department determined that these so-called “certified” or “fifth-year” breeding facilities pose the lowest level of risk.

         Another factor in evaluating risk is the relationship of a breeding facility or release site to a breeding facility at which CWD has been detected. As described in more detail below, those facilities and sites which are most closely related to the CWD-positive facility are referred to as “Tier 1” facilities.

         Another significant component of the proposed new rules is the requirement that breeder deer may be released (liberated) only on release sites that are surrounded by a fence of at least seven feet in height and that is capable of retaining deer at all times. Because deer held under deer breeder permits are frequently liberated for stocking and/or hunting purposes (27,684 in 2014), the potential for disease transmission from liberated breeder deer to free-ranging deer is of concern, given that the source of CWD in the index facility is currently unknown and the large number of deer that have been moved to other breeding facilities and/or released to the wild.

         The proposed new rules are necessary to protect the state’s white-tailed and mule deer populations, as well as the long term viability of associated hunting, wildlife management, and deer breeding industries.  To minimize the severity of biological and economic impacts resulting from CWD, the  proposed new rules implement a more rigorous testing protocol within certain deer breeding facilities and at certain release sites than was previously required.  The proposed new rules allow all deer breeders, except a CWD-positive facility, the opportunity to continue to move and release breeder deer in an effort to balance the needs of the many and varied landowner, management, and deer hunting interests in the state.

Changes from Emergency Rules

The proposed new rules differ from the emergency CWD rules in several ways.  Although the following is not a comprehensive listing, to assist persons wishing to comment on the proposed new rules, the following provides information about areas in which the proposed rules differ from the emergency rules.

Substantive Changes from Emergency Rules

         1. Section 65.91(e) of the emergency rules provides that if a breeding facility or release site accepts breeder deer from a facility of lower status, then the receiving facility assumes that lower status for the purpose of the rules. Although the emergency rules provide a mechanism for Transfer Category (TC) 2 status to be re-established for facilities that have dropped to TC 3 status, the emergency rules do not specify a timeframe for such a transition. Therefore, proposed new §65.91(f) stipulates that a facility that has dropped in status may increase in status, either in two years (TC 3 to TC 2) or in five (TC 2 to TC 1).

         2. Similarly, the emergency rules do not specifically address the status of new facilities permitted after March 31, 2015. In the same vein, the emergency rules do not explicitly state that it is possible for TC 2 facilities to become TC 1 facilities (although it would be automatic if “5th year” or “certified” status under the Texas Animal Health Commission (TAHC) Herd Certification Program is attained). Therefore, proposed new §65.92(a)(4) would contain clarifying language to the effect that facilities permitted after March 31, 2015 would assume the status of the lowest status of deer accepted.

         3. Section 65.93(b)(3)(A) of the emergency rules did not note that a release site is a Class III release site if it is a Tier 1 facility. Proposed new §65.93(b)(3)(B)(i) remedies that oversight.

Clarifying and Other Changes from Emergency Rules

         1. The emergency rules did not contain a definition of “confirmed” as it relates to CWD testing. In reviewing the emergency rule for the preparation of this proposal, the department determined that a definition of “confirmed” would be helpful to avoid confusion. Therefore, proposed new §65.90(3) defines the term as “a CWD test result of “positive” received from the National Veterinary Service Laboratories of the United States Department of Agriculture.”

         2. The definition of “exposed” contained at §65.90(9) of the emergency rules did not contemplate situations in which the department is able to determine that although a deer might otherwise be considered an “exposed” to CWD, the department is able, through an epidemiological investigation to determine that a deer is, in fact, not exposed.  For example, if a deer was transferred out of a breeding facility prior to a CWD-positive deer being transferred into the facility, the department may be able to determine that the deer transferred out of the facility was not exposed to CWD. The ability to determine that a deer is not, in fact, an exposed deer is important because a facility that accepts an exposed deer becomes a “Tier 1” facility, triggering provisions that not only affect that facility, but all the facilities that received deer from the facility. Therefore, the definition of “exposed” in proposed new §65.90(10) has been altered to allow the department to truncate the trace-back of deer movements in a facility in cases where an epidemiological investigation reveals the trace -back is not necessary.

         3. The definition of “Tier 1” contained at §65.90(20) of the emergency rules did not contemplate situations in which a facility that received exposed deer might be able to satisfy testing requirements to become eligible to move deer, but would still be prohibited from doing so by being subject to a TAHC hold order. Therefore, proposed new §65.90(21) has been altered to stipulate that a Tier 1 facility remains a Tier 1 facility if it is under a TAHC hold order.

         4. Section 65.91(h) of the emergency rules provided that a person who is subject to the provisions of the emergency rules is required to comply with the provisions of TAHC regulations at 4 TAC Chapter 40 (relating to Chronic Wasting Disease) that are applicable to white-tailed or mule deer. As worded, the provision inadvertently excludes deer released prior the effective date of the emergency rules, because such deer have been liberated and are not possessed under the provisions of the rules. Therefore, proposed new §65.92(i) has been reworded to apply also to persons who receive deer for liberation.

         5. Proposed new §65.93(a)(5) would provide that if the owner of a release site does not comply with the CWD testing requirements the release site would be ineligible to be a destination for future releases. The emergency rules and included a five-year timeframe for ineligibility.  The five-year time frame for ineligibility is not included in the proposed new rules.

         6. The emergency rules contained specific dates necessary to accommodate the immediate application of the emergency provisions. The proposed new rules eliminate those dates where necessary and replace them with generic language.

Definitions

         Proposed new §65.90, concerning Definitions, would set forth the meanings of specialized words and terms in order to eliminate ambiguity and enhance compliance and enforcement.

         Proposed new §65.90(1) would define “accredited testing facility” as “a laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD.” The definition is necessary in order to provide a standard for testing facilities.

         Proposed new §65.90(2) would define “breeder deer” as “a white-tailed deer or mule deer possessed under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.” The definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

         Proposed new §65.90(3) would define “confirmed” as “a CWD test result of “positive” received from the National Veterinary Service Laboratories (NVSL) of the United States Department of Agriculture.” The definition is necessary in order to provide a definitive standard for asserting the presence of CWD in a sample. Samples collected from breeder deer are sent initially to an accredited testing facility, such as the Texas Veterinary Medical Diagnostic Laboratory (TVMDL). A test result of “suspect” is returned when CWD is detected, and a tissue sample is forwarded to the NVSL for confirmation.

         Proposed new §65.90(4) would define “CWD” as “chronic wasting disease.” The definition is necessary to provide an acronym for a term that is used repeatedly in the rules.

         Proposed new §65.90(5) would define “CWD-positive facility” as “a facility where CWD has been confirmed.” The definition is necessary because the proposed new rules contain provisions that are predicated on whether or not CWD has been detected and confirmed in a given deer breeding, DMP, nursing, or other facility authorized to possess white-tailed deer or mule deer.

         Proposed new §65.90(6) would define “deer breeder” as “a person who holds a valid deer breeder’s permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.” As with several other definitions in the proposed new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

         Proposed new §65.90(7) would define “deer breeding facility (breeding facility)” as “a facility permitted to hold breeder deer under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.” As with several other definitions in the proposed new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

         Proposed new §65.90(8) would define “department (department)” as “Texas Parks and Wildlife Department.” The definition is necessary to avoid confusion, since the proposed new rules contain references to another state agency.

         Proposed new §65.90(9) would define “eligible mortality” as “a breeder deer that has died within a deer breeding facility and is 16 months of age or older, or, if the deer breeding facility is enrolled in the TAHC CWD Herd Certification Program, is 12-months of age or older.” The definition is necessary, in part, because the proposed rules require CWD testing of eligible mortalities. CWD is difficult to detect in deer younger than 12 months of age. The department’s previous CWD testing rules at §65.604 (e) of this title provided for testing of mortalities that were 16 months or older.  The department is retaining that standard but is also recognizing that the TAHC and USDA use a standard of 12 months.

         Proposed new §65.90(10) would define “exposed deer.” This definition would provide that  “unless the department determines through an epidemiological investigation that a specific breeder deer has not been exposed to CWD, an exposed deer is a white-tailed deer or mule deer that is in a CWD-positive facility or was in a CWD-positive facility within the five years preceding the confirmation of CWD in that facility.” The definition is necessary to distinguish the circumstances under which certain provisions of the proposed new rules are applicable. The five-year timeframe was selected because a deer infected with CWD could shed prions (the infectious agent believed to cause CWD) and infect other animals during this period before  exhibiting clinical symptoms of the disease. However, if an epidemiological investigation concludes that any part of the five-year window is unnecessary, the status of “exposed” could be altered.

         Proposed new §65.90(11) would define “hunter-harvested deer” as “a deer required to be tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).” The definition is necessary because the proposed rules in some instances require deer harvested by hunters (as opposed to other types of mortality) to be tested for CWD.

         Proposed new §65.90(12) would define “landowner (owner)” as “any person who has an ownership interest in a tract of land, and includes a landowner’s authorized agent.” The definition is necessary because the proposed new rules set forth testing requirements and other obligations for persons who own land where breeder deer are released.

         Proposed new §65.90(13) would define “landowner’s authorized agent” as “a person designated by a landowner to act on the landowner’s behalf.” The definition is necessary for the same reason set forth in the discussion of proposed new §65.90(12).

         Proposed new §65.90(14) would define “NUES tag” as “an ear tag approved by the United States Department of Agriculture for use in the National Uniform Eartagging System (NUES).” The definition is necessary because the proposed new rules require breeder deer released to the wild to be tagged with either a RFID or NUES tag.

         Proposed new §65.90(15) would define “originating facility” as “a facility that is the source facility identified on a transfer permit.” The definition is necessary because the proposed new rules allow breeder deer to be transferred between deer breeders, making it necessary to distinguish one from the other.

         Proposed new §65.90(16) would define “reconciled herd” as “the deer held in a breeding facility for which the department has determined that the deer breeder has accurately reported every birth, mortality, and transfer of deer in the previous reporting year.” The definition is necessary because the proposed rules require a deer breeder to have a reconciled herd in order to transfer or release breeder deer.

         Proposed new §65.90(17) would define “release site” as “a specific tract of land that has been approved by the department for the release of breeder deer under this division.” The definition is necessary because the proposed new rules impose CWD testing requirements for tracts of land where breeder deer are liberated if the breeder deer originate from certain types of deer breeder facilities.

         Proposed new §65.90(18) would define “reporting year” as “the period of time from April 1 of one calendar year to March 31 of the next calendar year.” Deer breeders are required to file annual reports with the department. The proposed new rules condition the eligibility of deer breeders to transfer and release deer on the completeness and accuracy of those reports.

         Proposed new §65.90(19) would define “RFID tag” as “a button-type ear tag conforming to the 840 standards of the United States Department of Agriculture’s Animal Identification Number system.” The definition is necessary because the proposed new rules require breeder deer released to the wild to be tagged with either an RFID or NUES tag.

         Proposed new §65.90(20) would define “status” as “the level of testing required by this division for any given deer breeding facility or release site.”  The definition also clarifies that the highest status for a Transfer Category is 1 and the lowest status is Transfer Category 3. Similarly, Class I is the highest status for release sites and Class III is the lowest. As noted previously, the proposed rules categorize breeding facilities and release sites based on relative risk. The definition is necessary because the proposed new rules predicate the eligibility of deer breeding facilities to transfer and receive breeder deer, and the release site testing requirements once they have received deer, upon the status of the breeding facility or release site.

         Proposed new §65.90(21) would define “Tier 1 facility” as “any  facility authorized to possess white-tailed deer or mule deer that has received an exposed deer within the previous five years or transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility.” The definition is necessary to offer a shorthand reference to those facilities that have a direct connection to a CWD-positive facility.

         Proposed new §65.90(22) would define “TAHC” as “Texas Animal Health Commission.” The Texas Animal Health Commission is the state agency charged with protecting livestock in the state, including farmed cervids.

         Proposed new §65.90(23) would define “TAHC CWD Herd Certification Program” as “the disease-testing and herd management requirements set forth in 4 TAC §40.3 (relating to Herd Status Plans for Cervidae).” The proposed new rules have provisions specific to deer breeders who participated in the TAHC herd certification program. The definition makes it clear that references to herd certification are references to the herd certification program administered by TAHC.

         Proposed new §65.90(24) would define “TAHC Herd Plan” as “a set of requirements for disease testing and management developed by TAHC for a specific facility.” The proposed new rules in some cases make eligibility to transfer or receive breeder deer contingent on compliance with a herd plan developed by TAHC. The definition makes it clear that references to herd plans are references to herd plans developed by TAHC.

         Proposed new §65.90(25) would define “TWIMS” as “the department’s Texas Wildlife Information Management Services (TWIMS) online application.” TWIMS is the system that all deer breeders are required to use to file required notifications and reports required by current rule.

General Provisions

         Proposed new §65.91, concerning General Provisions, would set forth a number of provisions that are applicable to the transfer or release of breeder deer.

         Proposed new §65.91(a) would stipulate that in the event that a provision of the proposed new rules conflicts with any other provision of 31 TAC Chapter 65, the new rules (if adopted) would apply. Because of the need to quickly implement a regulatory response to the emergence of CWD there is insufficient time to harmonize the proposed new rules with the agency’s existing rules governing white-tailed deer and mule deer. Therefore, the proposed new rules would clarify that the proposed new rules govern in the event of conflict.

         Proposed new §65.91(b) would prohibit the transfer of live breeder deer for any purpose except as provided by the proposed new rules. Because deer breeders frequently transfer deer to and receive deer from other deer breeders, as well as transfer breeder deer for release, it is necessary in light of the emergence of CWD in a Texas deer breeding facility to prohibit the movement of breeder deer except as authorized by the proposed rules.

         Proposed new §65.91(c) would prohibit the movement of deer to or from a deer breeding facility where CWD has been detected, beginning with the notification that a “suspect” test result has been received and lasting until the department authorizes resumption of activities. Given that CWD is an infectious disease, it is necessary to prohibit certain activities in order to contain the spread of the disease.

         Proposed new §65.91(d) would prohibit the transfer of exposed breeder deer from a deer breeding facility unless specifically authorized in a TAHC herd plan and then only in accordance with the provisions of the proposed new rules. Under TAHC rules, any deer breeding facility that receives breeder deer from CWD-positive facility is automatically placed under a “hold order,” which prohibits the movement of breeder deer out of the facility while TAHC conducts an epidemiological investigation and creates a herd plan for the facility based on that investigation. If the TAHC herd plan provides that movement of exposed deer can resume, then such movement may result if authorized by and if in compliance with the proposed new rules (if adopted).

         Proposed new §65.91(e) would stipulate that a breeding facility or release site that receives breeder deer from an originating facility of lower status would automatically assume the status of the originating facility and become subject to the testing and release requirements of the proposed new rules. The proposed new rules create a tiered system of testing requirements based on the level of risk of transmission of CWD for each deer breeding facility. The level of risk is based on the degree to which the facility has been monitored for the presence of CWD, or contains or is connected to exposed animals. Epidemiological science dictates that a population receiving individuals from a higher risk population is itself at greater risk; therefore, the proposed new rules would address such transfers from higher risk to lower risk populations by requiring the receiving facility or release site to comply with the testing requirements associated with the originating facility.

         Proposed new §65.91(f) would explicitly outline the timeframes for facilities or release sites to increase its status following a loss of status. A discussion of this provision was provided earlier in this preamble.

         Proposed new §65.91(g) would stipulate that a CWD test is not valid unless it is performed by an accredited testing facility. Obviously, the department’s efforts to detect and contain CWD depend on the quality of the testing itself. At the current time, USDA will not certify herd plans for cervidae unless CWD testing is performed by laboratories that have been approved by USDA. The standard for approval is compliance with 9 CFR §55.8, which sets forth the specific tests, methodology, and procedure for conducting CWD tests. Therefore, in order to ensure that CWD tests are performed in accordance with uniform standards, the proposed new rules would require all CWD tests to be performed by a laboratory approved by USDA. Additionally, the proposed new subsection would specify which tissues must be submitted and who is authorized to collect those tissues. At the current time, the only CWD testing approved by USDA must be performed on certain tissues from eligible mortalities, such as the obex (a structure in the brain) or certain lymph nodes. Laypersons can be trained to remove an obex, but the successful extraction of appropriate lymph nodes requires an experienced veterinarian, technician, or biologist. Therefore, the proposed new subsection also stipulates that to be valid, a CWD test must be performed on an obex, which can be collected by anyone. If a lymph node is to be tested in addition to the obex, it must be a medial retropharyngeal lymph node collected from the eligible mortality by an accredited veterinarian or other person approved by the department.

         Proposed new §65.91(h) would require all applications and notifications required by the proposed new rules to be submitted to the department electronically via the department’s TWIMS application or by another method expressly authorized by the department. Under current rule, deer breeders are required to submit all applications and reports via TWIMS; the proposed new rules would do so also, but also allow the department to authorize another method in an effort to account for unexpected situations, such as TWIMS being unavailable.

         Proposed new §65.91(i) would require compliance with TAHC rules concerning CWD, to the extent that they are applicable to white-tailed deer and mule deer. The department’s response to CWD is part of a multi-agency cooperative effort with TAHC. In addition to the applicability of the department’s rules regarding movement of breeder deer, TAHC rules govern herd plans; the department intends to enforce those rules under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L.

Transfer Categories and Requirements

         Proposed new §65.92, concerning Transfer Categories and Requirements, would set forth provisions generally applicable to deer breeding facilities as well as delineating a tiered system of testing requirements predicated on a given deer breeding facility’s exposure to deer from a CWD-positive facility.

         Proposed new §65.92(a) would establish those provisions generally applicable to the transfer of breeder deer from a deer breeding facility.

         Proposed new §65.92(a)(1) would provide for the transfer of breeder deer, pursuant to activation of a valid transfer permit, for four purposes: (1) to another deer breeder; (2) to an approved release site; (3) to a Deer Management Permit (DMP) facility; or (4) to another person for nursing purposes. Under previous rules at §65.610 of this title (relating to Transfer of Deer), breeder deer may be transferred only after the activation of a transfer permit and only for specific purposes (to another deer breeder; for release to the wild; to a DMP facility; to the holder of an educational display or zoological permit issued by the department; or on a temporary basis to another person for nursing purposes or to receive medical attention). Given the threat of transmission of CWD, the proposed new rules contemplate the qualified transfer of breeder deer in a narrower context. Therefore, the proposed new rules would allow the movement of breeder deer for four purposes, contingent on the satisfaction of testing requirements imposed by the proposed new rules or a TAHC herd plan.

         Notwithstanding the provisions of proposed new §65.92(a)(1), proposed new §65.92(a)(2) would prohibit the movement of breeder deer if: (1) the transfer is not authorized under a TAHC herd plan; (2) “not detected” CWD test results have been submitted for less than 20 percent of eligible mortalities at the breeding facility since May 23, 2006; (3) the breeding facility has an unreconciled herd inventory; or (4) the breeding facility is not in compliance with the provisions of §65.608 of this title (relating to Annual Reports and Records). The basis for each of these three prohibitions is explained as followed.

         With regard to the first prohibition, since a TAHC herd plan will normally not authorize the movement of breeder deer if the deer breeder does not institute a testing program, and/or comply with other requirements, proposed new paragraph (2)(A) would prohibit movement of breeder deer from a breeding facility that is not authorized to do so under the TAHC herd plan for the facility.

         With regard to the second prohibition, previous rules at §65.604 of this title (relating to Disease Monitoring) allowed a deer breeder to move breeder deer if, among other things, CWD test results of ’not detected’ had been returned from an accredited test facility on a minimum of 20 percent of all eligible breeder deer mortalities occurring within the facility since May 23, 2006. Although from an epidemiological perspective this standard provides a relatively low statistical confidence of detecting CWD if it exists in a facility, a less stringent standard would be of little value in detecting CWD. Therefore, any breeding facility not in compliance with this standard should not be allowed to move breeder deer until it has “tested out,” or submitted sufficient test samples of “not detected” to provide a higher level of confidence that CWD will not be transmitted from the facility.

         The third and fourth prohibitions are related to reconciled herds and annual reports. Current department rules at §65.608 of this title (relating to Annual Reports and Records) require deer breeders to submit an annual report. The annual report must include a herd reconciliation that accounts for every breeder deer held, acquired, or transferred by a breeding facility, as well as births and mortalities. A breeding facility that is not in compliance with the reporting requirements or has submitted incomplete or inaccurate records frustrates efforts to determine the source and/or disposition of every deer in the facility, meaning that any number of scenarios could be possible with respect to disease transmission.

         Proposed new §65.92(a)(3) would prohibit the transfer of a breeder deer to a Class III release site unless the deer has been tagged with an approved RFID or NUES ear tag. As has been discussed, the proposed new rules create a classification system for breeding facilities that is based on the extent to which the facility is believed to have been exposed to CWD and the testing history of the facility. The proposed new rules also create a similar system for classifying release sites. As described in more detail later in this preamble, deer within a Class III release site are at a higher risk for CWD. The department believes that breeder deer released onto a Class III site should be readily identifiable for purposes of CWD testing. Therefore, the proposed new rules would require such deer to be ear-tagged prior to release.

         Proposed new §65.92(a)(4) would stipulate that a deer breeding facility initially permitted after March 31, 2015 will assume the lowest status among all originating facilities from which deer are received. Proposed new §65.92(a)(4) would also provide that a breeding facility cannot assume TC 1 status unless it meets the criteria established in proposed new §65.92(b)(1), which limits the TC 1 designation to those facilities that are not Tier 1 facilities and have a “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program.

         Proposed new §65.92(b) would enumerate the three categories of breeding facilities and the testing requirements for each.

         Proposed new §65.92(b)(1) would establish that a breeding facility is a TC 1 facility  if it is not a Tier 1 facility and has “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program. Because a TC 1 facility has achieved this status in a disease monitoring protocol and has neither accepted deer from nor transferred deer to a CWD-positive facility, a TC 1 facility is a breeding facility that is least likely to contain CWD-positive breeder deer. Additionally, because a TC 1 facility with “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program is considered to be adequately monitoring for CWD, there are no additional testing requirements imposed by the proposed new rules on TC 1 facilities.

         Proposed new §65.92(b)(2) would establish that a breeding facility is a TC 2 facility if it is not a Tier 1 facility and it has returned “not detected” CWD test results for either 4.5 percent (or more) of the average number of deer at least 16 months of age (or 12 months of age, if the facility is participating in the TAHC herd certification program) within the facility during the previous two reporting years, or 50 percent of all eligible mortalities during the previous two reporting years, whichever represents the lowest number of deer tested. From an epidemiological point of view, not being a Tier 1 deer breeding facility is not, in and of itself, sufficient to provide any meaningful level of statistical confidence that CWD is not present within the population at the facility. However, in concert with effective surveillance, increased confidence can be obtained. The success of control and mitigation of infectious diseases is dependent on how soon the disease is detected after it is introduced, how quickly the source of the outbreak is identified, and how quickly infected animals can be isolated. The most effective first step in managing a disease outbreak in a herd of animals is to isolate those individuals known to have been in contact with infected individuals and then test those animals.  Unfortunately, as noted previously, the only CWD tests for deer currently approved by USDA must be performed post-mortem (i.e., there is currently no accepted live-animal test). The department recognizes that deer breeders have a considerable investment in their facilities and herds, and that preserving business continuity is an important consideration within the regulatory context.

         The testing requirement for TC 2 breeding facilities in proposed §65.92(b)(2) is the result of a statistical model developed by the department, in consultation with the TAHC, based on the reported average annual adult-mortality rate for all breeding facilities, which is approximately 4.5 percent. Thus, testing 4.5 percent of the adult population is equivalent to testing 100 percent of expected adult mortalities. As an example, a breeding facility with 100 adult deer that did not test 50% of the eligible mortalities during the previous two reporting periods would have the option to submit five “not detected” test results, which could include test results submitted during the previous two years. This standard is more stringent than the disease-testing requirements prior to the adoption of the emergency rules. The intent of this approach is to provide an enhanced method for detection of CWD early enough to allow for an effective response.

         Proposed new §65.92(b)(3) would establish that a breeding facility is a TC 3 facility if it is neither a TC 1 nor a TC 2 facility. The proposed new paragraph also would stipulate that a TC 3 facility could achieve TC 2 status by submission of “not detected” CWD test results for each breeder deer received by the facility from a CWD-positive site and for 4.5 percent (or more) of the average number of adult deer within the facility during the previous two reporting years. Obviously, a TC 3 facility represents the lowest confidence with respect to the presence of CWD. Therefore, the proposed new rules would allow transfer of breeder deer from a TC 3 only if it provided “not detected” test results for a sufficient number of adult deer in the facility in addition to any exposed deer associated with the facility (and was not under a hold order issued by TAHC). Proposed new §65.92(b)(3)(C) would require all deer transferred from a TC 3 breeding facility to a DMP facility, including buck deer that are returned from a DMP facility to a breeding facility, to be eartagged with an RFID/NUES tag.          As has been discussed, the proposed new rules create a classification system for breeding facilities that is based on the extent to which the facility is believed to have been exposed to CWD and the testing history of the facility. A DMP permit authorizes the temporary detention of free-ranging deer for breeding purposes; therefore, if a breeder deer is introduced to a DMP pen, those free-ranging deer come into contact with the breeder deer, and when they are released, they therefore come into contact with additional free-ranging deer. This scenario is epidemiologically analogous to the release of breeder deer to a Class III release, for which proposed new §65.92(a)(3) also impose eartagging requirements.

         Proposed new §65.92(c) would allow breeder deer to be temporarily transferred to a veterinarian for medical care. The department has determined that the temporary movement of breeder deer to a veterinary medical facility for treatment poses a low risk of transmitting CWD.

         Proposed new §65.93, concerning Release Sites — Qualifications and Testing Requirements, would set forth provisions generally applicable to locations where breeder deer are released to the wild. As noted above, the proposed rules classify release sites based on relative level of risk. More specifically, the classification of a release site is based on the release site’s level of risk, including exposure to deer from a CWD-positive facility. Proposed new §65.93 establishes testing and other requirements associated with release sites generally and with specific classes of release sites.

         Proposed new §65.93(a) would establish those provisions generally applicable to release sites.

         Proposed new §65.93(a)(1) would stipulate that an approved release site consists solely of the specific tract of land and acreage designated as a release site in TWIMS.  Proposed new §65.93(a)(2) also would require all release sites to be surrounded by a fence of at least seven feet in height that is capable of retaining deer at all times.  Proposed new §65.93(a)(2) also would require the owner of the release site to be responsible for ensuring that fencing and associated infrastructure retain the deer under ordinary and reasonable circumstances. In order to provide a measure of confidence that CWD is not spread from those places where breeder deer are released, it is necessary to identify the specific location where breeder deer are authorized to be released.   Similarly, it is necessary to establish a level of vigilance sufficient to give reasonable assurance that breeder deer are not allowed to leave the specific premise where they were released.

         Proposed new §65.93(a)(3) would set forth the on-site harvest documentation requirements for Class II and Class III release sites. The proposed new paragraph would require the owner of a Class II or Class III release site to maintain a daily harvest log at the release site. For each deer harvested from a Class II or Class III release site, the proposed new rules would require the hunter’s name and hunting license number (or driver’s license number, if the daily harvest log is also being used as a cold storage/processing book) to be entered into the harvest log , along with the date of kill, type of deer killed, any alphanumeric identifier tattooed on the deer, the tag number of any RFID or NUES tag affixed to the deer; and any other identifier and identifying number on the deer. The proposed new provision would enable the department to identify all deer harvested at a given release site (including deer that were released breeder deer) if an epidemiological investigation becomes necessary. The proposed new paragraph also would require the daily harvest log to be presented to any department employee acting within the scope of official duties and for the contents of the daily harvest log to be reported to the department via TWIMS by no later March 15 of each year.

         Proposed new §65.93(a)(4) would provide that a release site’s status cannot be altered by the sale or subdivision of a property to a related party if the purpose of the sale or subdivision is to avoid the requirements of this division. The department believes that a landowner subject to the provisions of the proposed new rules should not be able to avoid compliance simply by selling, donating, or trading the property to another person related to the seller.

         Proposed new §65.93(a)(5) would require the owner of a release site, as a consequence of consenting to the release of breeder deer on the release site, to submit all required CWD test results to the department as soon as possible but not later than May 1 of each year. The proposed new rules contemplate a disease management strategy predicated on the results of CWD testing. Incomplete, inadequate, or tardy reporting of test results confounds that strategy. For this reason, the proposed new paragraph would establish a date certain for reporting test results to the department. The proposed new paragraph also would provide that failure to timely submit test results will result in the release site being declared ineligible to be a destination for future releases. In light of the threat that CWD poses to native and farmed deer, it is prudent to suspend release site privileges for any landowner who does not comply with the testing requirements for release sites.

         Proposed new §65.93(a)(6) would prohibit any person from intentionally causing or allowing any live deer to leave or escape from a release site. The proposed new provision is necessary to ensure that once a release site has received breeder deer, no deer from the release site (breeder deer or free-ranging deer) are able to come into contact with surrounding populations of free-ranging deer.

         Proposed new §65.93(b) would enumerate the three categories of release sites and the testing requirements for each.

         Proposed new §65.93(b)(1) would establish that a release site is a Class I release site if it is not a Tier 1 facility and it receives breeder deer only from TC 1 facilities. Because a TC 1 facility has a “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program, a TC 1 facility is considered to be adequately monitoring for CWD. As a result, there are no additional testing requirements imposed by the proposed new rules on Class I release sites.

         Proposed new §65.93(b)(2) would establish that a release site is a Class II release site if it is not a Tier 1 facility, receives any breeder deer from a TC 2 facility, and receives no breeder deer from a TC 3 facility. The Class II designation is an intermediate category intended for release sites that have not received breeder deer from higher risk sources (i.e., Tier 1 and/or TC 3 facilities) but at the same time have not received deer solely from TC 1 facilities.  Such release sites are considered to present more risk than Class I but less risk than Class III for harboring CWD. Proposed new §65.93(b)(2)(B) also would impose testing requirements for Class II release sites. Specifically, if deer are harvested by hunters on a Class II release site during an open deer season, the landowner must test either a number of deer equivalent to 50 percent of the number of breeder deer released at the site between the last day of the previous year’s deer season and the end of any open season for deer in the current year, or 50 percent of all deer harvested by hunters, whichever value is lower. The proposed new paragraph would also provide that if any hunter-harvested deer were breeder deer released between the end of the previous deer season and the current deer season, 50 percent of those deer must be submitted for CWD testing, which may be counted to satisfy the requirements of §65.93(b)(2)(B).

         As mentioned previously in this preamble, from an epidemiological perspective, not being a Tier 1 facility is not, in and of itself, sufficient to provide high statistical confidence that CWD is not present or has not been introduced within the population at the release site. However, in concert with effective surveillance, increased confidence can be obtained. The success of control and mitigation of infectious diseases is dependent on how soon the disease is detected after it is introduced, how quickly the source of the outbreak is identified, and how quickly infected animals can be isolated. Although the most efficacious monitoring regime on a release site would be to require 100 percent of all harvested deer to be submitted for testing, the department is proposing to require the testing of only 50 percent of hunter-harvested deer at this time.

         Proposed new §65.93(b)(3) would establish that a release site is a Class III site release site if it is a Tier 1 facility (it has received deer from a CWD-positive facility) or it receives deer from an originating facility that is a TC 3 facility (the default status for breeding facilities that cannot provide statistical confidence that CWD is not present in the facility).  The Tier 1 and TC 3 designations represent those environments that have the highest likelihood of harboring CWD; accordingly, the proposed new paragraph would require the landowner of a Class III release site to test 100 percent of all hunter-harvested deer or one hunter-harvested deer per breeder deer released between the end of the previous year’s deer season and the end of the current deer season, whichever results in the greatest number of test results.

         Again, the department emphasize that the proposed new rules, if adopted, would be an interim replacement for the current emergency rules adopted on August 18, 2015 (40 TexReg 5566), (“emergency CWD rules”). As noted previously, based additional information from the ongoing epidemiological investigation, disease surveillance data collected from captive and free ranging deer herds, guidance from the TAHC, and input from stakeholder groups, the department intends to review the interim rules following the close of the deer season and present the results of that review to the Commission in the spring of 2016 for possible modifications.

2. Fiscal Note.

         Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of the permit programs affected will 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 rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules 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 also ensuring the continued beneficial economic impacts of hunting in Texas. Additionally, the protection of free-ranging deer herds will have the simultaneous collateral benefit of protecting captive herds, and maintaining the economic viability of deer breeding operations.

         (B) There will be adverse economic impact on persons required to comply with the rules as proposed, which are the same as the adverse economic impacts to small and microbusinesses, which are addressed later in this preamble.

         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.

         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.

         Government Code,  §2006.001(1), defines a small or micro-business as a legal entity “formed for the purpose of making a profit” and “independently owned and operated.” A micro-business is a business with 20 or fewer employees. A small business is defined as a business with fewer than 100 employees, or less than $6 million in annual gross receipts. Although the department does not require deer breeders to file financial information with the department, the department believes that most if not all deer breeders would qualify as a small or micro-business. Since the rules as proposed would impact the ability of a deer breeder to engage in certain activities undertaken to generate a profit, the proposed rules may have an adverse impact on deer breeders.

Impact on Sales

         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 legal 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 purchase a breeder deer from a facility with a close relationship to a facility at which CWD has been detected.

         The proposed new rules would not completely prohibit the transfer of deer except by CWD-positive facilities, and facilities prohibited from transfer by TAHC hold order (in addition to facilities that were not allowed to transfer deer under previous regulations due to failure to test a minimum number of deer or failure to comply with record-keeping requirements). All TC 1 and TC 2 facilities (and 429 TC 3 facilities) would be allowed to transfer deer, provided certain conditions are met.

         For TC 1 facilities, the department has determined that there will likely be no adverse economic impact on sales as a result of the proposed new rules. Since transfers of breeder deer from TC 1 facilities are subject to the fewest restrictions under the proposed rules, 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.

         For TC 2 facilities, the adverse economic impact of the proposed new rules would consist of the cost of the additional testing requirements (described in more detail below) and possible loss of sales to TC 1 facilities and Class I release sites. The proposed new rules would not prohibit the transfer of breeder deer by TC 2 facilities, but because the proposed new rules would cause any TC 1 facility or Class I release site that accepts deer from a TC 2 (or TC 3) facility to assume the status (and regulatory obligations, such as testing) of  the TC 2 (or TC 3) facility, and because TC 2 facilities carry a greater risk of exposure to CWD, it can be assumed that TC 1 facilities or Class I release sites will be less likely destinations for breeder deer coming from 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 breeding facility was 175, but the overwhelming majority of transfers were 10 or fewer deer. The impact to the deer breeder would be the loss of the sale and any attendant profit from the sale of deer. As previously mentioned in this analysis, 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 rules on TC 2 facilities cannot be accurately 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.

         However, as noted previously, under the §65.92(b) of the proposed rules, 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. Therefore, it should be noted, that a TC 1 facility was not a likely destination for a breeder deer from a TC 2 facility under previous regulations.

         For TC 3 facilities, the adverse economic impact of the proposed new rules would consist of the cost of the additional testing requirements (described in more detail below) and possible loss of sales to TC 1 and TC 2 facilities and Class I and Class II release sites. The proposed new rules would not prohibit the transfer of breeder deer by TC 3 facilities unless the facility is a CWD-positive facility or prohibited from transferring deer under a TAHC hold order (in addition to facilities that were not allowed to transfer deer under previous regulations due to failure to test a minimum number of deer or failure to comply with record-keeping requirements). Because the proposed new rules would cause any facility or release site of higher status that accepts deer from a TC 3 facility to assume the status (and regulatory obligations, such as testing) of that 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.  Department records indicate that there are currently 497 TC 3 facilities in the state, and that last year, 288 of them transferred breeder deer to facilities that are now higher-status facilities or release sites. The greatest number of breeder deer transferred from any breeding facility last year that is now a TC 3 facility was 111, but the overwhelming majority of transfers were 10 or fewer deer. As previously mentioned in this analysis, the department does not require holder 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 rules on TC 2 facilities 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.

         The proposed new rules would prohibit the introduction to or removal of deer from breeder facilities that are CWD-positive or that have received exposed breeder deer, which would result in an adverse economic impact to deer breeders whose facilities are either an index facility or a Tier 1 facility, or both. The extent of such adverse economic impact would consist of loss of revenue as a result of being unable to introduce or remove deer from the breeding facility and thus being unable to deliver or accept deer that have been bought or sold. The dollar value of the adverse economic impact is dependent on the volume of deer produced or acquired by any given permittee, which can vary from a few deer to hundreds of deer. However, as noted above, it is difficult, if not impossible, to accurately determine whether and how much any adverse economic impact is due to the presence of CWD in a facility or a related facility or would be due to the proposed regulations. Department records indicate that there are two CWD-positive breeding facilities and 104 Tier 1 breeding facilities that are currently not eligible to transfer deer. The department notes that with the exception of breeding facilities that are CWD-positive, the proposed new rules allow Tier 1 facilities (which would be classified as TC 3 facilities) to transfer breeder deer following successful compliance with the testing and other provisions of the proposed new rules.

Testing Costs

         The proposed new rules would cause an adverse economic impact to deer breeders and release site owners who must undertake disease-testing requirements to continue certain activities. As a result, deer breeders who are not TC 1 facilities and owners of release sites that are not Class I release sites would incur costs related to the increased testing and monitoring requirements of the proposed new rules.

         The cost of a CWD test administered by the Texas Veterinary Medicine Diagnostic Lab (TVMDL) on a sample collected and submitted by a deer breeder 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.

          Facilities that are seeking to become “certified” or “fifth year” facilities are also required to obtain an annual inventory by an accredited veterinarian. The cost of an annual inventory by an accredited veterinarian is estimated by TAHC to be approximately $250.  However, it should be noted that the requirements for obtaining “certified” or “fifth year” status are not imposed by the proposed rules, but rather by existing TAHC regulations.

         The department estimates that the direct economic impact of testing in order become “movement qualified” under the proposed new rules would be between $52 and $92 per deer per year for each permittee who desires to meet to criteria for moving deer under the proposed new rules. If the sample is collected, fixed, and submitted by a private veterinarian, the cost could be higher. However, it should be noted that under previous rules, a breeder facility that sought to transfer deer was required to test 20 percent of eligible mortalities for CWD.  Therefore, only that portion of the estimated testing costs associated with the additional testing under the proposed new rules would be the result of the proposed rules.

         For a TC 1 facility, the difference between the current rules and the proposed new rules would be the requirement to have “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program, which required the testing of all mortalities aged 12 months or more (rather than 20 percent, as currently required by department rules), and the cost of an annual inventory conducted by an accredited veterinarian (which is also required by TAHC regulations (4 TAC §40.3)). However, as noted above, current TC 1 facilities were already complying with these TAHC requirements. This impact would be only for those facilities that are not TC 1 facilities but are seeking to obtain this TC 1 status in order to more easily transfer deer.

         For a TC 2 facility, the difference between the current rules and proposed new rules would be the requirement to test 4.5 percent or 50 percent of all eligible mortalities (rather than 20 percent, as currently required). Such costs would be necessary only if a TC 2 facility owner wishes to engage in activities involving movement of deer to deer breeding facilities and release sites of certain status.

         The department notes that because CWD has been proven to be transmissible by direct contact (including through fences) and via environmental contamination, there may be adverse economic impacts unrelated to the proposed new rules in the event that CWD is confirmed in a breeding facility due to the possible reluctance of potential customers to purchase deer from a facility that accepted deer from a CWD-positive facility. Additionally, in the absence of the proposed new rules, if CWD is detected within a facility or breeder deer that have been in a facility that accepted deer from a CWD-positive facility, there could be lost revenue to the permittee since potential purchasers who are aware of CWD would likely refrain from purchasing deer from such a facility. Therefore, the proposed new rules, by providing a mechanism to minimize the spread of CWD, could also protect the economic interests of the regulated community.

         The department also notes that for any given deer breeder that is currently not qualified to move or release deer, compliance with the proposed new rules could be achieved in five years or less and at the additional direct economic cost of CWD testing requirements imposed by the proposed new rules.

Loss of Sacrificed Deer

         The proposed new rules would provide for the testing of additional deer (compared to the previous testing requirements) for some deer breeders who desire to move to a higher status. If deer are sacrificed for testing (in addition to eligible mortalities), there could be an economic impact from the loss of the deer and any revenue that might have been realized from the sale of the deer to another breeder or to a release site for liberation. As noted previously, the department does not require that breeders report financial data. The economic impact on a deer breeder would depend on whether the deer breeder sacrifices deer to achieve testing requirements, and the number and type of deer sacrificed. As noted above, the lost revenue from the sacrificed deer could range from few hundred dollars or less per deer to thousands of dollars per deer.

Release Sites

         The proposed new rules will result in adverse economic impacts to landowners of Class II and Class III release sites, who would be required to comply with certain testing requirements. Only those landowners who receive breeder deer would be subject to the testing requirements imposed by the proposed rules. Department data indicate that 26,684 breeder deer were liberated at 1,594 release sites in the last year (an average 17.4 deer per release). The single largest liberation was 175 deer in a single transaction in the 2014-2015 permit year, but the vast majority of releases involved fewer than 10 deer.

         For a Class II release site, if deer are hunter-harvested, a number of deer equivalent to 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 must be tested, or 50 percent of all hunter-harvested deer. The proposed new rules also requires 50 percent of any hunter-harvested deer that were released breeder deer to tested, which may be counted to satisfy the total testing requirement.

         For a Class III release site, the proposed new rules would require 100 percent of all hunter-harvested deer to be tested 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 at the site season in the current year.

         The analysis of CWD testing costs for deer breeding facilities presented earlier in this preamble also applies to release sites.

         Also, because the proposed new rules require all release sites to be enclosed by a fence of at least seven feet in height, a landowner desiring to have breeder deer released on a tract that is not surrounded by such a fence would incur the cost of building one. The cost of fence construction varies by terrain and region, but anecdotal information suggests that it is $10,000 per linear mile or more. The department notes that only 610 breeder deer were released to low-fence environments last year, and that the practice is extremely rare because the deer represent a significant purchase cost and once they are released they become free-ranging deer and may be legally killed on an adjoining property should they wander from the release site.

Alternatives Considered

         The department considered several alternatives to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply. The department considered proposing no rules. This alternative was rejected because the presence of CWD in breeding facilities 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 attempting to eliminate CWD at the CWD-positive sites and Tier 1 facilities by conducting a depopulation event, which means killing every deer within those sites in the hopes of eliminating the reservoir for the disease as well as identifying the source of the outbreak. This alternative was rejected because it would result in the destruction of several thousand deer and thus would have significant implications to business continuity of some deer breeders (the two CWD-positive facilities and the 104 breeding facilities that are now Tier 1 facilities). Furthermore, removing every animal that exists within an affected area does not remove prions (the infectious agent believed to cause CWD), which can be shed by an infected animal and remain in the environment and which in turn can infect susceptible animals introduced to or inhabiting the environment.

         The department also considered imposing less stringent testing requirements. This alternative was rejected because the testing requirements in the proposed new rules reflect mathematical models aimed at higher confidence than is possible under current disease-testing requirements that CWD is or is not present. Less stringent testing requirements would reduce confidence and therefore impair the ability of the department to respond in the event that CWD actually is present. The department also believes that a higher testing intensity is necessary to provide assurance to the hunting public, private landowners, and the regulated community that wildlife resources are safe and reliable.

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

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed 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 rules are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession of breeder deer held under the authority of the subchapter; 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; 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 rules affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1.

6. Rule Text.

         §65.90.  Definitions. The following words and terms shall have the following meanings, except in cases where the context clearly indicates otherwise.

                 (1) Accredited testing facility — A laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD.

                 (2) Breeder deer — A white-tailed deer or mule deer possessed under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.

                 (3) Confirmed — A CWD test result of “positive” received from the National Veterinary Service Laboratories of the United States Department of Agriculture.

                 (4) CWD — chronic wasting disease.

                 (5) CWD-positive facility — A facility registered in TWIMS and in which CWD has been confirmed.

                 (6) Deer breeder — A person who holds a valid deer breeder’s permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.

                 (7) Deer breeding facility (breeding facility) — A facility permitted to hold breeder deer under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.

                 (8) Department (department) — Texas Parks and Wildlife Department

                 (9) Eligible mortality — A breeder deer that has died within a deer breeding facility and:

                         (A) is 16 months of age or older; or

                         (B) if the deer breeding facility is enrolled in the TAHC CWD Herd Certification Program, is 12-months of age or older.

                 (10) Exposed deer — Unless the department determines through an epidemiological investigation that a specific breeder deer has not been exposed, an exposed deer is a white-tailed deer or mule deer that:

                         (A) is in a CWD-positive facility; or

                         (B) was in a CWD-positive facility within the five years preceding the confirmation of CWD in that facility.

                 (11) Hunter-harvested deer — A deer required to be tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).

                 (12) Landowner (owner) — Any person who has an ownership interest in a tract of land, and includes a landowner’s authorized agent.

                 (13) Landowner’s authorized agent — A person designated by a landowner to act on the landowner’s behalf.

                 (14) NUES tag — An ear tag approved by the United States Department of Agriculture for use in the National Uniform Eartagging System (NUES).

                 (15) Originating facility — The source facility identified on a transfer permit.

                 (16) Reconciled herd — The deer held in a breeding facility for which the department has determined that the deer breeder has accurately reported every birth, mortality, and transfer of deer in the previous reporting year.

                 (17) Release site — A specific tract of land that has been approved by the department for the release of breeder deer under this division.

                 (18) Reporting year — For a deer breeder, the period of time from April 1 of one calendar year to March 31 of the next calendar year.

                 (19) RFID tag — A button-type ear tag conforming to the 840 standards of the United States Department of Agriculture’s Animal Identification Number system.

                 (20) Status — The level of testing required by this division for any given deer breeding facility or release site. For the transfer categories established in §65.92(b) of this title (relating to Transfer Categories and Requirements), the highest status is Transfer Category 1 (TC 1) and the lowest status is Transfer Category 3 (TC3). For the release site classes established in §65.93(b) of this title (relating to Release Sites — Qualifications and Testing Requirements), Class I is the highest status and Class III is the lowest.

                 (21) Tier 1 facility — Any facility registered in TWIMS that has:

                         (A) received an exposed deer within the previous five years; or

                         (B) transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility; and

                         (C) is under a TAHC hold order.

                 (22) TAHC — Texas Animal Health Commission.

                 (23) TAHC CWD Herd Certification Program — The disease-testing and herd management requirements set forth in 4 TAC §40.3 (relating to Herd Status Plans for Cervidae).

                 (24) TAHC Herd Plan — A set of requirements for disease testing and management developed by TAHC for a specific facility.

                 (25) TWIMS — The department’s Texas Wildlife Information Management Services (TWIMS) online application.

         §65.91. General Provisions.

                 (a) To the extent that any provision of this division conflicts with any other provision of this chapter, this division prevails.

                 (b) Except as provided in this division, no live breeder deer may be transferred anywhere for any purpose.

                 (c) Notwithstanding any other provision of this chapter, no person shall introduce into or remove breeder deer from or allow or authorize breeder deer to be introduced into or removed from any deer breeding facility for which a CWD test result of ’suspect’ has been obtained from an accredited testing facility. The provisions of this subsection take effect immediately upon the notification of a CWD ’suspect’ test result for a deer breeding facility, and continue in effect until the department expressly authorizes the resumption of permitted activities at that facility.

                 (d) No exposed breeder deer may be transferred from a breeding facility unless expressly authorized in a TAHC herd plan and then only in accordance with the provisions of this division.

                 (e) A breeding facility (including a facility permitted after the effective date of this subsection) or release site that receives breeder deer from an originating facility of lower status automatically assumes the status associated with the originating facility and becomes subject to the testing and release requirements of this division at that status.

                 (f) A facility that has dropped in status may increase in status as follows:

                         (1) from TC 3to TC 2: by complying with the provisions of §65.92(b)(3)(B) of this title (relating to Transfer Categories and Requirements) for a period of two consecutive years;

                         (2) from TC 2 to TC 1 status: by attaining “fifth-year”  or “certified” status in the TAHC CWD Herd Certification Program.

                 (g) A CWD test is not valid unless it is performed by an accredited testing facility on the obex of an eligible mortality, which may be collected by anyone. A medial retropharyngeal lymph node collected from the eligible mortality by an accredited veterinarian or other person approved by the department may be submitted to an accredited testing facility for testing in addition to the obex of the eligible mortality.

                 (h) Unless expressly provided otherwise in this division, all applications and notifications required by this division shall be submitted electronically via TWIMS or by another method expressly authorized by the department.

                 (i) A person who possesses or receives white-tailed deer or mule deer under the provisions of this division and Subchapter T of this chapter is subject to the provisions of TAHC regulations at 4 TAC Chapter 40 (relating to Chronic Wasting Disease) that are applicable to white-tailed or mule deer.

         §65.92. Transfer Categories and Requirements.

                 (a) General.

                         (1) A breeding facility that is a TC 1, TC 2, or TC 3 facility may transfer breeder deer under a valid transfer permit that has been activated and approved by the department as provided in §65.610(e) of this title (relating to Transfer of Deer) to:

                                  (A) another breeding facility;

                                  (B) an approved release site as provided in §65.93 of this division (relating to Release Sites — Qualifications and Testing Requirements);

                                  (C) a DMP facility under Chapter 65, Subchapter D of this title (relating to Deer Management Permits); or

                                  (D) to another person for nursing purposes.

                         (2) Notwithstanding the provisions of paragraph (1) of this subsection, a breeding facility is prohibited from transferring breeder deer anywhere for any purpose if:

                                  (A) such a transfer is not authorized pursuant to a TAHC Herd Plan associated with a hold order or quarantine;

                                  (B) “not detected” CWD test results have been submitted for less than 20percent of eligible mortalities at the breeding facility since May 23, 2006;

                                  (C) the breeding facility has an unreconciled herd inventory; or

                                  (D) the breeding facility is not in compliance with the provisions of §65.608 of this title (relating to Annual Reports and Records).

                         (3) A deer breeder may not transfer a breeder deer to a Class III release site unless the deer has been tagged by attaching a button-type RFID or NUES tag approved by the department to one ear.

                         (4) A deer breeding facility that was initially permitted after March 31, 2015 will assume the lowest status among all originating facilities from which deer are received; provided, however, a breeding facility shall not assume TC 1 status unless it meets the criteria established in subsection (b)(1) of this section.

                 (b) Types of Facilities.

                         (1) TC 1. A breeding facility is a TC 1 facility if:

                                  (A) it is not a Tier 1 facility; and

                                  (B) it has “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program.

                         (2) TC 2. A breeding facility is a TC 2 facility if:

                                  (A) it is not a Tier 1 facility; and

                                  (B) CWD test results of “not detected” have been returned for one of the following values, whichever represents the lowest number of tested breeder deer:

                                          (i) 4.5 percent or more of the breeder deer held within the facility during the immediately preceding two reporting years, based on the average population of deer in the facility that were at least 16 months of age on March 31 of each year (including eligible mortalities for those years); or

                                          (ii) 50 percent of all eligible mortalities from the preceding two reporting years, provided at least one eligible mortality was tested.

                         (3) TC 3.

                                  (A) A breeding facility is a TC 3 facility if it is neither a TC 1 facility nor a TC 2 facility.

                                  (B) A breeding facility may increase status from TC 3 to TC 2 if CWD test results of “not detected” have been obtained for:

                                          (i) each breeder deer received by the breeding facility from any CWD-positive site;

                                           (ii) each exposed breeder deer that has been transferred by the breeding facility to another breeding facility or released; and

                                          (iii) 4.5 percent or more of the breeder deer held within the breeding facility during the immediately preceding two reporting years, based on the average population of deer in the facility that were at least 16 months of age on March 31 of each year (including eligible mortalities for those years).

                                  (C) All deer transferred from a TC 3 breeding facility to a DMP facility, including buck deer that are returned from a DMP facility to a breeding facility, must be eartagged with an RFID/NUES tag.

                 (c) Breeder deer may be temporarily transferred to a veterinarian for medical care.

         §65.93. Release Sites — Qualifications and Testing Requirements.

                 (a) General.

                         (1) An approved release site consists solely of the specific tract of land and acreage designated as a release site in TWIMS.

                         (2) All release sites must be surrounded by a fence of at least seven feet in height that is capable of retaining deer at all times.  The owner of the release site is responsible for ensuring that the fence and associated infrastructure retain the deer under ordinary and reasonable circumstances.

                         (3) The owner of a Class II or Class III release site shall maintain a legible daily harvest log at the release site.

                                  (A) The daily harvest log shall be on a form provided or approved by the department and shall be maintained until the report required by subparagraph (E) of this paragraph has been submitted to and acknowledged by the department.

                                  (B) For each deer harvested on the release site and tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation), the landowner must, on the same day that the deer is harvested, legibly enter the information required by this subparagraph in the daily harvest log.

                                  (C) The daily harvest log shall contain the following information for each deer harvested on the release site:

                                          (i) the name and hunting license of the person who harvested the deer;

                                          (ii) the date the deer was harvested;

                                          (iii) the species (white-tailed or mule deer) and type of deer harvested (buck or antlerless);

                                          (iv) any alphanumeric identifier tattooed on the deer;

                                          (v) any RFID or NUES tag number of any RFID or NUES tag affixed to the deer; and

                                          (vi) any other identifier and identifying number on the deer.

                                  (D) The daily harvest log shall be made available upon request to any department employee acting in the performance of official duties.

                                  (E) By not later than March 15 of each year, the owner of a release site shall submit the contents of the daily harvest log to the department via TWIMS or other format authorized by the department.

                         (4) Release site status cannot be altered by the sale or subdivision of a property to a related party if the purpose of the sale or subdivision is to avoid the requirements of this division.

                         (5) The owner of a release site agrees, by consenting to the release of breeder deer on the release site, to submit all required CWD test results to the department as soon as possible but not later than May 1 of each year. Failure to comply with this paragraph will result in the release site being declared ineligible to be a destination for future releases.

                         (6) No person may intentionally cause or allow any live deer to leave or escape from a release site.

                 (b) Types of Release Sites

                         (1) Class I.

                                  (A) A release site is a Class I release site if it:

                                          (i) is not a Tier 1 facility; and

                                          (ii) receives breeder deer only from TC 1 facilities.

                                  (B) There are no testing requirements for a Class I release site.

                         (2) Class II.

                                  (A) A release site is a Class II release site if it:

                                          (i) is not a Tier 1 facility;

                                          (ii) receives any breeder deer from TC 2  facility; and

                                          (iii) receives no deer from a TC 3 facility.

                                  (B) The landowner of a Class II release site must obtain valid CWD test results for one of the following values, whichever represents the lowest number of deer tested:

                                          (i) if deer are hunter-harvested, a number of deer equivalent to 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

                                          (ii) 50 percent of all hunter-harvested deer.

                                  (C) If any hunter-harvested deer were 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 at the site in the current, 50 percent of those hunter-harvested deer must be submitted for CWD testing, which may be counted to satisfy the requirements of subparagraph (B) of this paragraph.

                         (3) Class III.

                                  (A) A release site is a Class III release site if:

                                          (i) it is a Tier 1 facility; or

                                          (ii) it receives deer from an originating facility that is a TC 3 facility.

                                  (B) The landowner of a Class III release site must obtain valid CWD test results for one of the following values, whichever represents the greatest number of deer tested:

                                          (i) 100 percent of all hunter-harvested deer; or

                                          (ii) 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 at the site in the current year.

         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. 6
Exhibit B

TRIPLE T PERMIT/CWD RULES

EMERGENCY ADOPTION PREAMBLE

 1. Introduction.

         Pursuant to Parks and Wildlife Code, §12.027, and Government Code, §2001.034, the executive director of the Texas Parks and Wildlife Department (the department) adopts, on an emergency basis, new §65.95, concerning Chronic Wasting Disease — Triple T Permit Provisions.  Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for better wildlife management (popularly referred to as “Triple T” permits). In addition, the department may issue permits authorizing the trapping, transporting and processing of surplus white-tailed deer (popularly referred to as TTP permits). White-tailed and mule deer are game animals. The department has enacted regulations to address the Triple T and TTP for deer at 31 TAC, Chapter 65, Subchapter C. The new emergency rule will be constituted within Division 2 of Subchapter B, Disease Detection and Response.

         For the reasons explained in this preamble, the department’s executive director has determined that the presence of chronic wasting disease (CWD) poses an immediate danger to white-tailed and mule deer, which are species authorized to be regulated by the department, and that the adoption of the rule on an emergency basis with fewer than 30 days’ notice is necessary to address this immediate danger.

         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 breeders 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).  (A DMP is a permit issued by the department under rules adopted pursuant to Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, that allows the temporary possession of free-ranging white-tailed or mule deer for breeding purposes.) The department estimates that in the last five years, more than 728 locations in Texas (including 384 deer breeders) either received deer from the index facility or received deer from a deer breeder who had received deer from the index facility

          As provided in the Texas Administrative Code, the emergency rule will initially be in effect for no longer than 120 days, but may be extended for an additional 60 days

         The emergency rule sets forth provisions governing the requirements and obligations of persons who move white-tailed and mule deer under Triple T permits. The new rule is 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 correlates with deer population declines and human dimensions research suggest that hunters will avoid areas of high CWD prevalence. The implications of CWD for Texas and its multi-billion dollar ranching, hunting, and wildlife management economies could be significant, unless contained and controlled.

         The department has engaged in several rulemakings over the years to address the threat posed by CWD in addition to the emergency and proposed rules referenced previously. 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).)

         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 measures to be taken to protect white-tailed and mule deer in Texas. Based on recommendations from the CWD Task Force, the department 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 check stations to be tested for CWD.

         The department adopted emergency rules on August 18, 2015 (40 TexReg 5566) to address deer breeding facilities and release sites for breeder deer, (“emergency CWD rules”). The department also has proposed new rules to replace the emergency CWD rules. Those rules were published for public comment in the October 2, 2015, issue of the Texas Register and are intended to be considered for adoption by the Texas Parks and Wildlife Commission (the Commission) at its November 5, 2015, meeting.

         The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas. Since 2002, more than 32,882 “not detected” CWD test results were obtained from free-ranging (i.e., not breeder) deer in Texas. Additionally, deer breeders have submitted 12,759 “not detected” test results to the department. The intent of the new emergency rule is to reduce the probability of CWD being spread from areas where it might exist and to increase the probability of detecting CWD where it does exist.

         The new emergency rule sets forth specific provisions that tie the movement of deer under Triple T permits to the testing requirements imposed by §§65.90-65.93 of this title for release sites. The emergency rule obligates landowners of trap sites to CWD testing requirements in certain situations. The emergency rule replaces the current disease-testing rules located at 31 TAC §65.102 and will be in effect statewide for all Triple T permits. In contrast to the current rule, the emergency rule does not allow CWD test samples collected or tested prior to the Saturday closest to September 30 of the permit year to be used to satisfy the CWD testing requirements associated with TTT and TTP permit activities . The emergency rule also does not allow CWD test samples to be used in following years, nor does it continue the “preferred status” provisions of current §65.102(b) and (c), which allow trap sites with a demonstrated test history of “not detected” test results to test at a reduced rate once 60 “not detected” test results have been accumulated.

         The department notes for purposes of clarification that the provisions of the emergency CWD rules (as well as the proposed replacement rules, if adopted) apply to the emergency TTT rules adopted in this rulemaking, to the extent applicable. The applicable provisions would include, for example, the definitions in §65.90 and the categories and classes of breeding facilities and release sites.

         Because deer trapped, transported, and released under a Triple T permit are liberated to the wild (2,565 in 2014), the potential for disease transmission to free-ranging deer poses a threat to free-ranging populations, given that any given trap site, in light of the release of breeder deer from the index facility to multiple locations around the state, could be a pathway for CWD to be transmitted to free-ranging populations.

         The emergency action is necessary to protect the state’s white-tailed and mule deer populations.

         The rules are adopted on an emergency basis under Parks and Wildlife Code, §12.027, which authorizes the department’s executive director to adopt emergency rules if there is an immediate danger to a species authorized to be regulated by the department, and under Government Code, §2001.034, which authorizes a state agency to adopt such emergency rules without prior notice or hearing. In addition, Parks and Wildlife Code, Chapter 43, Subchapter E, authorizes the department to regulate the trapping, transporting, and transplanting of white-tailed and mule deer for scientific, management, and propagation purposes.

         §65.95. Chronic Wasting Disease — Triple T Permit Provisions .

                 (1)  This section applies to a permit issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds), including:

                         (A) a permit to trap, transport, and transplant game animals or game birds (Triple T permit);

                         (B) a permit to trap, transport, and process surplus white-tailed deer (TTP permit); and

                         (C) an urban white-tailed deer removal permit.

                 (2) General.

                         (A) The provisions of §65.102 of this title (relating to Disease Detection Requirements) cease effect upon the effective date of this section.

                         (B) The department will not issue a Triple T permit that authorizes deer to be trapped at a

                                  (i) Class III release site; or

                                  (ii) any site on a property where a deer has been confirmed positive for CWD.

                         (C) In addition to the reasons for denying a Triple T permit listed in §65.103(c) of this title (relating to Trap, Transport, and Transplant Permit) , the department will not issue Triple T permit if the department believes that to do so would create an unacceptable risk for the spread of CWD.

                         (D) Notwithstanding the provisions of §65.93(a)(6) of this title (relating to Release Sites — Qualifications and Testing Requirements), the department may issue a Triple T permit unless otherwise prohibited by this section.

                         (E) All deer released under the provisions of this section shall be legibly tattooed in one ear with a department-assigned identification number prior to release.

                         (F) Nothing in this section authorizes the take of deer except as authorized by applicable laws and regulations, including but not limited to laws and regulations regarding seasons, bag limits, and means and methods.

                         (G) The disease testing required by this section shall be performed on deer of at least 16 months of age.

                         (H) A test result is not valid if the sample was collected or tested prior to the Saturday closest to September 30 of the year for which activities of the permit are authorized.

                         (I) Notwithstanding, the provisions of paragraphs (3) and (4) of this section, a sample size shall be not more than 40 nor less than 10 deer.

                 (3) Disease Testing Requirements for Triple T Permit.

                         (A) The department will not issue a Triple T permit unless a sample of deer from the trap site equivalent to 10% of the number of deer to be transported has been tested and confirmed “not detected” for CWD by an accredited test facility.

                         (B) CWD testing is not required for deer trapped on any property if the deer are being moved to adjacent, contiguous tracts owned by the same person who owns the trap site property.

                 (4) Disease Testing Requirements for TTP Permit.

                         (A) The landowner of a Class III release site must obtain valid CWD test results for 100% of the deer harvested pursuant to a TTP permit.

                         (B) A sample of deer from the trap site (other than a Class III release site) equivalent to 10% of the number of deer authorized to be trapped pursuant to TTP permit must be tested for CWD by an accredited test facility.

                         (C) Test results related to a TTP permit must be submitted to the department via TWIMS, or other approved process, by May 1.


Work Session Item No. 6
Exhibit C

DEER MANGEMENT PERMIT/CWD RULES

EMERGENCY ADOPTION PREAMBLE

 1. Introduction.

         Pursuant to Parks and Wildlife Code, §12.027, and Government Code, §2001.034, the executive director of the Texas Parks and Wildlife Department (the department) adopts, on an emergency basis, new §65.94, concerning Chronic Wasting Disease — Deer Management Permit Provisions. The new emergency rules will be part of Subchapter B, Division 2, Chronic Wasting Disease — Movement of Deer. 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. 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 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.) A buck deer that is introduced from a deer breeding facility to a DMP facility may be liberated from the DMP facility, returned to the breeding facility from which the buck deer was transferred, or transferred to another deer breeder. All doe deer introduced to a DMP facility, whether by trapping from a free-ranging herd or transfer from a deer breeding facility must be liberated upon release from the DMP facility.

         For the reasons explained in this preamble, the department’s executive director has determined that the presence of chronic wasting disease (CWD) poses an immediate danger to white-tailed and mule deer, which are species authorized to be regulated by the department, and that the adoption of these rules on an emergency basis with fewer than 30 days’ notice is necessary to address this immediate danger.

         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 breeders 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 breeders) either received deer from the index facility or received deer from a deer breeder who had received deer from the index facility. The intent of the new emergency rule is to reduce the probability of CWD being spread from areas where it might exist and to increase the probability of detecting CWD where it does exist.

          As provided in the Texas Administrative Code, the emergency rules will initially be in effect for no longer than 120 days, but may be extended for an additional 60 days. It is the intent of the department to also publish proposed rules pursuant to the Administrative Procedure Act’s notice and comment rulemaking process at a later date.

         The emergency rule sets forth provisions governing the transfer of breeder deer to and from DMP facilities. The new rules are 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 correlates with deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. The implications of CWD for Texas and its multi-billion dollar ranching, hunting, and wildlife management economies could be significant, unless contained and controlled.

         The department 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).)

         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 measures to be taken to protect white-tailed and mule deer in Texas. Based on recommendations from the CWD Task Force, the department 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 check stations to be tested for CWD.

         The department adopted emergency rules on August 18, 2015 (40 TexReg 5566) to address deer breeding facilities and release sites for breeder deer, (“emergency CWD rules”). The department also has proposed new rules to replace the emergency CWD rules. Those rules were published for public comment in the October 2, 2015, issue of the Texas Register and are intended to be considered for adoption by the Texas Parks and Wildlife Commission (the Commission) at its November 5, 2015, meeting.

         The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas. Since 2002, more than 32,882 “not detected” CWD test results were obtained from free-ranging (i.e., not breeder) deer in Texas. Additionally, deer breeders have submitted 12,759 “not detected” test results to the department. The intent of the new emergency rules is to reduce the probability of CWD being spread to DMP facilities and subsequent DMP release sites and to increase the probability of detecting CWD if it does exist.

         The department notes for purposes of clarification that the provisions of the emergency CWD rules adopted August 18, 2015, (as well as the proposed replacement rules, if adopted) apply to the emergency DMP rules adopted in this rulemaking, to the extent applicable. The applicable provisions would include, for example, the definitions in §65.90 and the categories and classes of breeding facilities and release sites.

         The new emergency rules therefore set forth specific provisions that tie the movement of breeder deer for the purposes of DMP activities to the testing requirements imposed by §§65.90-65.93 of this title for release sites, which require CWD testing to be performed at the site where DMP deer are to be liberated, depending on the source of the deer detained in a DMP facility. The new emergency rules also impose a status change for a deer breeding facility that receives a deer from a DMP facility of lower status. The new emergency rule also prohibits the transfer of breeder deer to a Level 3 DMP facility or a Class III release site unless the deer has been tagged with an approved RFID or NUES ear tag.

         The emergency action is necessary to protect the state’s free-ranging and captive white-tailed deer populations.

         The rules are adopted on an emergency basis under Parks and Wildlife Code, §12.027, which authorizes the department’s executive director to adopt emergency rules if there is an immediate danger to a species authorized to be regulated by the department, and under Government Code, §2001.034, which authorizes a state agency to adopt such emergency rules without prior notice or hearing. In addition, Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, authorize the department to regulate the possession of free-ranging white-tailed or mule deer for breeding purposes.

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

                 (a) General Provisions.

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

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

                         (3) 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 facility becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year.

                         (4) 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.

                         (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 facility 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 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 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.


Work Session Item No. 7
Presenter: Kevin Good

Work Session
State Park Rules Request Permission to Publ
ish Proposed Rule Revisions in the Texas Register
November 4, 2015

I.       Executive Summary: The State Parks Division is requesting permission to publish proposed changes to the State Parks Rules in the Texas Register for public comment. The proposed rules amend the provisions of 31 Texas Administrative Code (TAC), Chapter 59. The proposed amendments would update and simplify rules regarding park fees, business operations, and state park administration, and would update rules regarding visitor conduct.

II.     Discussion: The proposed changes include the following:

  • Subchapter A. Park Entrance and Use Fees:
    • Separate entrance fee language in a standalone subsection;
    • Clarify language regarding types of annual passes;
    • Eliminate obsolete fees (train fares, island access, fishing pier);
    • Consolidate certain existing fees into a new “Park Impact” fee that will be applied to commercial uses of parks such as filming activities and special events that restrict use by others, require additional park labor or impact facilities or resources.
  • Subchapter C. Acquisition and Development of Historic Sites, Buildings and Structures:
    • Update subchapter title;
    • Update acquisition criteria;
    • Delete provisions regarding thematic organization of historic sites.
  • Subchapter E. Operation and Leasing of Park Concessions:
    • Simplify and update leased concession contract terms and rates language;
    • Clarify calculation of concession franchise fee payments;
    • Address renewal rights.
  • Subchapter F. State Park Operational Rules:
    • Add language about use of animals (including llamas) in parks;
    • Add language prohibiting the introduction of exotic species;
    • Add language to address fishing in state park waters;
    • Add language regarding closure of parks for public health and safety, resource management activities, construction or other purposes.
  • Subchapter G. Relocation Assistance in Park Acquisition Projects
    • Delete subchapter as unnecessary.
  • Subchapter K. Acceptance of Donated Land
    • Move provisions into Subchapter C.

Attachments – 4

  1. A – Subchapter A. Park Entrance and Use Fees
  2. B – Subchapter C. Acquisition and Development of Historic Sites, Buildings and Structures
  3. C – Subchapter E. Operation and Leasing of Park Concessions
  4. D – Subchapter F. State Park Operational Rules

Work Session Item No. 7
Exhibit A

NOTE: The current state parks rules contain a number of provisions that are outdated, non-regulatory, not required by statute, or purely informational. With the development of the department’s Land and Water Resources Conservation and Recreation Plan, many of these provisions are no longer useful or appropriate in a regulatory format. The proposed new and amended rules below represent a reorganization and modernization of the current rules; however, the substantive impact is minor. This proposal does not affect any fee amounts. Where noted, the current rules are proposed for repeal.

CHAPTER 59. PARKS

SUBCHAPTER A.PARK ENTRANCE AND USE FEES

NOTE : Staff proposes the repeal of current Subchapter A (§§59.1-59.5) to be replaced with new §§59.1-59.6.

         §59.1. Establishment of Fees. For the purposes of this subchapter, “state park” or “park” means a state park, state natural area, state historic site, or state park and historic site under the department’s jurisdiction.

                 (a) The Executive Director (executive director) of the Texas Parks and Wildlife Department (department) shall interpret and implement this subchapter to obtain maximum benefits for the people of Texas in their enjoyment of the state park system and in the expansion, improvement, and perpetuation of the system for the use and enjoyment of present and future generations.

                 (b) The executive director by executive order shall:

                         (1) designate state park entrance, activity, facility, and use fee amounts within the fee ranges established by the commission in this subchapter and may establish any such fees to apply on a yearly, seasonal, monthly, weekly, or daily basis; 

                          (2) provide for any waiver or discounting of entrance, activity, facility, or use fees:

                                  (A) when circumstances adversely affect public enjoyment of the recreational opportunities normally available: or

                                  (B) to enhance utilization or to promote the future use of existing facilities or activities; and

                         (3) establish a fee schedule for replacing or duplicating evidence of fee payment (receipt/window sticker etc.).

                 (c) The executive director by executive order may designate other department personnel to discount or waive fees in accordance with a written policy for the discounting or waiver of fees.

                 (d) The establishment and collection of fees and fee waivers shall be consistent with sound management of financial resources and strong fiscal controls.

         §59.2. Park Entrance Fees.

                 (a) An entrance/day use permit fee may be levied at a state park as provided in this section. 

                         (1) An entrance/day use permit allows unlimited entry privileges to a person for the period of time specified by the permit.

                          (2) Entry privileges cease at the posted closing time unless an overnight facility use fee has also been paid.

                         (3) When an overnight facility use fee has been paid in addition to an entry fee, entry privileges cease at closing time on the day of checkout, unless the executive director has approved an alternative timeframe, which shall be clearly posted at the park.

                 (b) An entrance fee of $1.00 — $15.00 per person may be imposed at designated parks.

                 (c) The department may designate or contract for a single fee that includes entrance, facility use, activity, tour, or other applicable fees. Entrance fees may be incorporated into facility use, activity, tour or other applicable fees.

         §59.3. Park Entry Passes. Park entry passes authorize entry privileges to parks where entry fees apply but are not valid for tour, activity or other applicable fees.

                 (1) Annual Park Entrance Passes.

                         (A) A valid annual park entrance pass authorizes park entry without payment of an individual entrance fee for the holder of the annual pass, and:

                                  (i) all occupants in the same vehicle with the holder of the annual park entrance pass if the holder of the annual park entrance pass is entering by noncommercial motor vehicle ;

                                  (ii) up to 14 other persons accompanying the pass holder in the same boat if the holder of the annual park entrance pass is entering by boat; or

                                  (iii) up to 14 other persons accompanying the pass holder if the holder of the annual park entrance pass is entering by bicycle or on foot .

                          (B) An annual park entrance pass is valid only for private, noncommercial use and is not valid for:

                                  (i)  buses or similar vehicles; or

                                  (ii) commercial use such as guided tour groups. 

                         (C) An annual park entrance pass is not valid unless presented by the person named on the pass.

                         (D) The fee for an annual park entrance pass shall be established by order of the executive director within the range of $50 — $100.

                         (E) The fee for an annual park entrance pass that is part of a promotional drawing under the provisions of §51.750 of this title(relating to Promotional Drawings), of this title is $0.

                 (2) Youth Group Annual Entrance Pass.

                         (A) A youth group annual entrance pass authorizes entry to any state park without payment of an individual entrance fee for up to a total of 50 persons  belonging to a nonprofit youth organization.

                         (B) The department on a case-by-case basis may limit the number of  adult supervisors entering a park under this subsection.  Vehicles entering a park under a single youth group pass may be subject to additional fees if the number of vehicles  exceeds the vehicle capacity for the campsite.

                         (C) The fee for a pass under this subsection shall be established by order of the executive director within the range of $50 — $300.

                         (D) A youth group annual entrance pass is valid for 12 months from date of purchase.

                 (3) State Parklands Passport. A state parklands passport shall be issued at no cost to any person meeting the criteria established by Parks and Wildlife Code, §13.018.  

                         (A) Except as otherwise provided in this subsection, a state parklands passport authorizes the entry of the person to whom it was issued to any state park without payment of an individual entrance fee, and includes a discounted individual entry fee of 50% for one person accompanying and providing assistance to the passport holder. For the purposes of this paragraph, "accompanying" means entering a park simultaneously with the passport holder.

                         (B) To be eligible for issuance of a state parklands passport under the provisions of Parks and Wildlife Code, §13.018(a)(3), a person must submit government-issued personal identification and one of the following:

                                  (i) an Award of Benefits Letter or a Statement of Benefits from the Social Security Administration that attests to the applicant’s permanent disability; or

                                  (ii) an affidavit or attestation on a form approved by the department certifying that the applicant meets the requirements of Parks and Wildlife Code, §13.018(a)(3) and this subsection.

                         (C) A state parklands passport holder whose date of birth is after August 31, 1930 may enter any state park upon payment of 50% of the posted entrance fee for the park, rounded to the nearest higher whole dollar.

                         (D) A parklands passport is nontransferable.

                         (E) The department may impose a fee for a replacement state parklands passport.

         §59.4. Activity and Facility Use Fees.

                 (a) A person authorized to use a facility overnight may remain in the facility from the time of admission until 2 p.m. on the day of checkout and may remain in the park until the posted closing time, unless otherwise clearly and prominently posted at the park.

                 (b) Fee ranges — facility use:

                         (1) campsites — $4.00-$36;

                         (2) cabins and shelters — $15-$200

                         (3) group day use facility (recreation/meeting hall/dining hall) — $50-$1,000;

                         (4) group day use area — $17-$200

                         (5) group overnight use facility(bunkhouses, barracks, campsites, shelters), variable by facility type or number of occupants — $100 — $1,500

                         (6) bunkhouse/hotel/motel room — $35-225 ;

                         (7) excess vehicle parking(per vehicle) — $1.00-$6.00(parking areas designated by park superintendent);

                         (8) excess occupancy fee (in addition to facility use fee), per person — $1.00-$25;

                 (c) Fee ranges — activities:

                         (1) seasonal or annual activity pass — $25-$325;

                         (2) swimming pools use:

                                  (A) adults — $2.00-$6.00;

                                  (B) child – six to twelve years of age — $1.00-$4.00(children under six free);

                                  (C) group use(before or after normal operating hours) — $35-$750

                         (3) golf course use:

                                  (A) green fees — daily — $7.00-$15;

                                  (B) golf trail fee for privately owned golf carts:

                                          (i) daily — $3.00-$12.00; and

                                          (ii) annual — $50-$175;

                         (4) activity use fee per person (day or overnight) — $2.00-$50;

                         (5) lake use fee — $5.00-$15;

                         (6) visitor shuttle fee per person — $2.00-$10;

                         (7) tour fees (educational, interpretive, instructional, adventure and/or entertainment or any combination of fees packaged into one rate for park-specific special events up to and including multi-night visitation, food, accommodations, increased staffing, special preparations or equipment, or similar considerations) per person — $.25-$1,000;

                         (8) educational seminar fee — variable according to type of seminar, size of group and other applicable considerations;

                         (9) Equipment rental fee — variable according to type of equipment and other applicable considerations.

                 (d) Park impact fees.

                         (1) Park impact fees may be assessed for special events, media productions, commercial uses, or other activities that:

                                  (A) restrict or impact the use of a park by other users;

                                  (B) necessitate additional labor or operating expenses for the department; or

                                  (C) impact park facilities or resources.

                         (2) Park impact fees shall be established by contract with the department. The amount of a park impact fee shall be set for each event based on costs incurred by the department, visitor and resource impact values, and any benefits provided to the department. A contract under this paragraph shall also establish any privileges and restrictions.

                         (3) Park impact fees may be combined or packaged with other use and/or concessions fees. 

                 (e) Special hunting access permits. Special hunting access permits allow entry to parks by persons selected for public hunting activities.

         §59.5. Reservation of State Park Facilities. Reservations for park facilities may be accepted for park units designated by the executive director. The executive director is authorized to prescribe such procedures and conditions for reservations, consistent with applicable law. 


Work Session Item No. 7
Exhibit B

CHAPTER 59. PARKS

SUBCHAPTER C. LAND ACQUISITION

NOTE : Staff proposes the repeal of current Subchapter C (§§59.41-59.47) and new §§59.42-59.44.

         §59.42. Land Acquisition Guidelines (including donations).

                 (a) The commission finds that there are many factors that affect the suitability of land for use as a state park, natural area or historic site, and objectively quantifying the value of one tract over another can be difficult or impossible.  Nonetheless, all potential acquisitions (including donations) are evaluated for their attributes with respect to the categories delineated in this section. The relative importance of each parameter within the categories will vary from proposal to proposal, depending upon the specific needs and goals of the department at the time of consideration.

                         (1) Contribution to Land and Water Resources Conservation and Recreation Plan.  The department will consider whether the addition of land for inclusion in the state parks system would contribute to the goals established in the department’s Land and Water Resources Conservation and Recreation Plan.

                         (2) Contiguity with existing land in the state parks system. The land is near, adjacent to, or within the boundaries of an existing unit of the state parks system.

                         (3) Recreational value. The land possesses a high potential for providing popular, strategic, or critical opportunities for recreational enjoyment of the natural world by the public. Such potential is characterized by:

                                  (A) water features such as springs, creeks, bayous, rivers, lakes, or coastline;

                                  (B) landforms such as mountains, hills, canyons, etc., that are suitable for hiking, camping, or other types of outdoor use that are typically sought after or enjoyed by the public;

                                  (C) underground features such as caves, caverns, or sinkholes;

                                  (D) significant aesthetic resources, such as views or panoramas; or

                         (4) Natural resource value. The land:

                                  (A) contains a high-value natural feature or features;

                                  (B) is habitat for rare or endangered species of plants or animals;

                                  (C) reflects a representative ecosystem of the state or could be restored or managed to reflect a natural ecosystem; or

                                  (D) significant geological or paleontological resources.

                         (5) Historical or Interpretive value. The land provides significant cultural or historical resources or interpretive value consistent with the department’s Land and Water Resources Conservation and Recreation Plan.

                         (6) The land fills a gap in the inventory of natural or cultural resources or recreational opportunities offered by the state park system.

                         (7) Ancillary values. The land offers or contains significant or valuable:

                                  (A) viewsheds;

                                  (B) wildlife corridors;

                                  (C) watersheds; or

                                  (D) buffers for existing parkland from development or other incompatible land uses.

                         (8) Size. The department shall consider the size of a parcel of land as it relates to the factors set forth in paragraphs(1) -(5) of this subsection.

                                  (A) Small parcels (less than 500 acres) should be contiguous to existing properties in the state park system to be considered, unless the value of the parcel in terms of the criteria listed in paragraphs(1) -(5) of this section is such that the department has a compelling interest in acquiring the land.

                                  (B) Large parcels (greater than 500 acres) need not be contiguous to existing properties within the state park system to be considered for acquisition, provided that acquisition is consistent with the department’s Land and Water Resources Conservation and Recreation Plan.

                         (9) Other criteria. The department will consider other criteria, including, but not limited to cost effectiveness, source or availability of funding, access, deed restrictions, potential threats to future operations from mineral activity, use agreements, previous land uses, operating and maintenance costs or any other factors would make the use of the land impractical or problematic.

                 (b) No land will be added to the state park system unless the land is formally accepted by the Texas Parks and Wildlife Commission voting in open session. The Texas Parks and Wildlife Commission, in its sole discretion, may accept or decline any proposed donations of land for inclusion in the state park system.

         §59.44. Development Guidelines.

                 (a) Development of facilities within state park system units will be limited to structures and associated infrastructure that advance department purposes or serve visitor needs. 

                 (b) Facility development shall be consistent with applicable Master Plans, Preservation Plans and other guidance documents relating to the property.


Work Session Item No. 7
Exhibit C

CHAPTER 59. PARKS

SUBCHAPTER E. OPERATION AND LEASING OF PARK CONCESSIONS

         §59.101. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) Concessioner — Any person, partnership, or corporation granted leased concession rights or privileges.

                 (2) Concessions — Those services and accommodations offered to the public in state parks for which charges, fees, admissions, or similar assessments are collected, excluding park entrance and facility use fees.

                 (3) Franchise fee — The annual fee or percentage of gross receipts a concessioner pays to the department for park concession rights or privileges.

                 (4) Leased concessions — Rights or privileges granted by the department to any individual, partnership, or corporation to provide visitor services and accommodations for profit within the boundaries of a state park.

                 (5) State park or park — A state park, state natural area, state historic site, or state park and historic site under the department’s jurisdiction.

                 [(5) Prospectus — A public statement issued by the department giving information on the availability of a leased concession as to location, visitor services and accommodations to be provided, capital and operating investment needed, business experience or other knowledge required, and the procedure to follow in submitting a concession proposal.]

                 [(6) State-operated concessions — Visitor services and accommodations operated by park personnel.]

                 [(7) Partnership Concessions — Visitor services and accommodations operated by a non-profit park volunteer support group.]

         §59.102. General Requirements for Leased Park Concessions.

                 (a) Park visitor services and accommodations may be operated by a concessioner under contractual arrangements. Park concessions shall be limited to visitor services and accommodations that are necessary and appropriate for public use and enjoyment of the state park area in which they are to be located, and that are consistent to the highest practical degree with the preservation and conservation of the area. [When adequate services and accommodations exist outside a park within a reasonable distance, every attempt will be made to avoid the duplication of same products and services.]

                 (b) Except as noted in this paragraph, all building and land improvements for overnight or day-use accommodations in state parks for which user fees are charged shall be developed at state expense. The department shall be responsible for the operation and maintenance of overnight and day-use facilities developed with state funds and shall also be responsible for the collection of user fees unless this responsibility has been specifically delegated to a concessioner. In the event cabins, lodges, or other buildings and structures are deemed essential for the public’s full enjoyment of an area, and state funds are not available in priority for their development, the commission may authorize facilities to be constructed, operated, and maintained with private capital.

                 [(c) Park visitor services and accommodations in the following categories may be operated by a concessioner under contractual arrangements: ]

                         [(1) food and merchandise sales; ]

                         [(2) equipment rentals for recreational use;]

                         [(3) merchandise vending machines;]

                         [(4) marine supplies and services;]

                         [(5) horse livery;]

                         [(6) transportation;]

                         [(7) automotive supplies and services;]

                         [(8) fishing piers and fishing marinas;]

                         [(9) facilities for accommodating overnight visitors; and]

                         [(10) visitor services to interpret parks and natural and cultural resources].

                 (b)[(d)] In parks where certain facilities for visitor services and accommodations have been provided at state expense, a concessioner may be permitted to use said buildings, structures, and installations provided he assumes full responsibility for their maintenance and repair due to normal wear and tear.

                 (d)[(e)] The executive director, subject to the provisions of commission policy, shall take such action as may be appropriate to encourage or enable the use of private capital to provide visitor services and accommodations necessary for the full enjoyment of park areas administered by the department.

         §59.103. Selection of a Concessioner.

                 (a) The granting, termination, amendment, transfer, assignment, and enforcement of all leased concession contract requirements and provisions of such contracts is delegated to the executive director. [When it is determined by the executive director that the leasing of a park concession is necessary, desirable, and financially feasible for furnishing visitor services and accommodations in a park area, or when it is necessary to secure a new concessioner for a leased concession, a prospectus announcing the availability of such concession shall be issued to all interested persons, detailing essential information about the concession, and the procedure to follow in submitting a proposal. The executive director or his designee shall fully publicize the availability of a concession in the immediate area of the park and on a state or national level when circumstances warrant a broader coverage. ]

                 (b) Recruitment and selection of concessioners for a leased concession within a state park shall be accomplished in a manner appropriate for the scale of the investment and term of the business opportunity, ensuring that the selection process is fair and equitable, and incompliance with applicable contracting laws.

                 (c) A concessioner will be selected with great care to ensure[insure] that the concessioner has the[he has] ability to successfully operate the concession in compliance with the contract between the concessioner and the department[an entirely satisfactory manner.

In addition to ample financing and ability to conduct the concession in an economical manner, the concessioner should conduct his operation in accordance with the ideals and objectives of the department by adhering to business practices that emphasize public service in addition to a profit motive, and are consistent to the highest practical degree with the preservation and conservation of the area. The department may disregard any or all proposals submitted, or make any counter proposal it may consider reasonable or desirable in accordance with commission policy].

                 [(d) The executive director may terminate a contract upon finding that a material breach of the contract has occurred.]

         §59.105. Leased Concession Contract Terms.

                 (a) All contracts [The standard form contract] shall be executed for a term [of years] commensurate with the size of the total investment required of the concessioner. The duration of a contract shall be set for a period of time to allow for a reasonable opportunity for return on investment.

                 (b) Franchise fee rates shall be determined by the executive director or his designee in an equitable and fair manner, giving consideration to the various types of operations, gross receipts, net profit, and capital invested. Single or multiple percentages applied to all or various kinds of gross receipts may be considered in new or amended contracts[Revocable short-term contracts shall be issued for a term of two years or less].

                 (c) The penalties and interest assessed for delinquent franchise fees shall be stated in the contract, but may not exceed the penalties and interest rate established in the Texas Tax Code §111.060 and §111.061. [Revocable temporary contracts shall be issued for a term of 6 to 18].

                 (d) Penalties and/or interest under this section may be waived by the executive director or designee for good cause.

                 (e) The rates and charges prescribed by the concessioner shall be subject to the approval of the executive director or designee. The reasonableness of the concessioner’s rates and charges to the public shall be judged primarily by comparing with current charges for facilities and services of comparable character under similar conditions. Consideration shall be given to factors deemed relevant to the type of concession, location, and business conditions.

         §59.107. Accounting.

                 (a) Concessioners[The concessioner] shall submit reports and keep such records in such a manner as the executive director may prescribe to enable the department to determine that all terms and conditions of the concession contract have been and are being faithfully performed.

                 (b) The state auditor, or duly authorized representative of the department, shall, for the purpose of audit and examination, have access to records and other books, documents, and papers of the concessioner pertinent to the contract.

         §59.108. Bond and Insurance.

                 (a) The executive director may require the concessioner to furnish a bond conditioned upon the faithful performance of a[his] contract. When the contract award involves construction or other impacts to the park[of public accommodations], the concessionaire will be required to obtain a payment bond and may be required to take other actions to ensure the protection of the interests of the department and the public.

                 (b) The concessioner shall carry such liability insurance as deemed appropriate by the department[insurance against losses by fire, public liability, employee liability, and other hazards as is customary among prudent operators of similar businesses under comparable circumstances, and in amounts satisfactory to the department. The executive director has the authority to increase this limitation when conditions warrant such action].

         §59.109. Furnishing Utilities.

                 (a) The department may furnish utilities to the concessioner.

                 (b) When it is not feasible for the department to meter utilities supplied to the concessioner, a reasonable rate fixed by the department for the concessioner’s monthly consumption may be assessed and included in the concession contract terms [shall be due upon receipt of notification].


Work Session Item No. 7
Exhibit D

CHAPTER 59. PARKS

SUBCHAPTER F. STATE PARK OPERATIONAL RULES

         §59.131. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) – (19) (No change.)

                 (20) Wildlife — A species, including each individual of a species, that normally lives in state of nature and is not ordinarily domesticated.

         §59.133.

                 (a) The director by written order may establish closing hours and opening hours for a state park or a portion of a state park. Closing hours or opening hours shall be posted.

                 (b) The director or designee may close a state park as necessary to protect public health and safety during emergency conditions, resource management activities, construction projects or other management purposes.

                 (c)[(b)] Except for persons authorized by the department to use a camping facility, trailer space, shelter, cabin or lodge facilities, or boat ramp, or for persons who have paid the overnight activity use fee, it is an offense for a person to enter into or remain within a state park between the closing hour and the opening hour.

         §59.134. Rules of Conduct in Parks.

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

                 (c) Animals. Except as provided in this subsection, it is an offense for any person to bring into a state park, possess while in a state park, or release into a state park any species of animal. A pet, equine, or llama[pet or equine] may be brought into and possessed within a state park as provided in this subsection.

                         (1) Equine or llama. It is an offense for any person to:

                                  (A) ride, drive, lead, or keep an equine or llama,[equines,] except in designated areas;

                                  (B) ride an equine or llama [equines] in a manner that is dangerous to a person or animal;

                                  (C) allow an equine or llama [equines] to stand unattended or insecurely tied; or

                                  (D) hitch an equine or llama [equines] to a tree, shrub, or structure in any manner that may cause damage.

                         (2) (No change.)

                         (3) Wildlife. It is an offense for any person to:

                                  (A) harm, harass, disturb, trap, confine, catch, possess, or remove any wildlife, or portions of wildlife from a unit of the state park system, except by a permit issued by the director or as provided by the Parks and Wildlife Code, Chapter 62, Subchapter D;

                                  (B) release or introduce any species of animal life[fish] within a park (including waters within a park[into the waters of any state park], except as authorized by the Parks and Wildlife Code and written order of the Executive Director or designee; or

                                  (C) feed or offer food to any wildlife or exotic wildlife, or to leave food unsecured in a manner that makes the food available to wildlife or exotic wildlife, unless specifically authorized by the department. The feeding of birds may be permitted on a park-by-park basis as prescribed by the department.

                 (d) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm in a state park, unless:

                         (1) the person is participating in a public hunting activity within the state park that has been authorized by written order of the director so long as the person is in compliance with the applicable public hunting rules and regulations; [or]

                         (2) the person is fishing by means of lawful archery equipment of crossbow  while participating in an authorized, supervised recreational or educational activity;

                         (3) the person is licensed to possess and carry a handgun under Government Code, Chapter 411, Subchapter H, and is in possessing and/or carrying the handgun in compliance with applicable law, including, but not limited to, applicable regulations adopted pursuant to Government Code, Chapter 411,  Subchapter H ,; or

                         (4)[(2)] the person has been authorized by written order of the director.

                 (e) – (q) (No change.)

         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. 11
Presenter: Ted Hollingsworth

Work Session
Boundary Agreement Including Exchange of Real Estate – Presidio County
Big Bend Ranch State Park
November 4, 2015

I.             Executive Summary: Texas Parks and Wildlife Department (TPWD) staff has been working with an adjacent private property owner to simplify a boundary line between his ranch and the Big Bend Ranch State Park.

II.     Discussion: Big Bend Ranch State Park, at roughly 310,000 acres, is Texas’ largest state park, encompassing a wide range of far west Texas landscapes and habitats. Since the initial 212,528-acre acquisition in 1988, a number of other tracts have been added, and the current park boundary includes roughly 22 miles of frontage on the Rio Grande, and nearly 100 miles of boundary in common with private landowners. Complex ownership histories, topography, and the challenges of building fences on much of this landscape means that management boundaries are often boundaries of convenience, and TPWD has boundary agreements in place with several adjacent landowners.

One such ranch is the LaMota Ranch, of which 13,268 acres was donated to TPWD in 2000. Recent land acquisition and survey work at the LaMota Ranch, with approximately 18 miles of boundary in common with the state park, has resulted in opportunities to fence much of the park/ranch boundary. It also presents an opportunity to enter into an exchange of parcels that will straighten sections of the boundary and reduce its net length by some 5 miles. About 600 acres would be added to the park in the process. In addition, TPWD would gain direct access to the Cienega portion of the park from a public road.

Attachments – 4

  1. Exhibit A – Location Map
  2. Exhibit B – Vicinity Map
  3. Exhibit C – Site Map of BBRSP
  4. Exhibit D – Site Map for Boundary Agreement

Work Session Item No. 11
Exhibit A

Location Map for Big Bend Ranch State Park in Presidio County

Location Map for Big Bend Ranch State Park in Presidio County


Work Session Item No. 11
Exhibit B

Vicinity Map for Big Bend Ranch State Park – 50 Miles South of Marfa

Vicinity Map for Big Bend Ranch State Park – 50 Miles South of Marfa


Work Session Item No. 11
Exhibit C

Site Map Showing General Location of LaMota Ranch and Proposed Boundary Agreement

Site Map Showing General Location of LaMota Ranch and Proposed 
Boundary Agreement


Work Session Item No. 11
Exhibit D

Site Map for Proposed Boundary Agreement and Land Exchange at Big Bend Ranch State Park
Black Line Shows Current Park Boundary
Red Line Shows Proposed Park Boundary Following Exchange
Land Shaded in Blue to be Transferred to LaMota Ranch
Land Shaded in Yellow to be Transferred to TPWD

Site Map for Proposed Boundary Agreement and Land Exchange at Big Bend Ranch State Park


Work Session Item No. 13
Presenter: Corky Kuhlmann

Work Session
Land Sale – Brown County
November 4, 2014

I.       Executive Summary:  Texas Parks and Wildlife Department (TPWD) staff is seeking permission to begin the public notice and input process regarding a possible sale of approximately 19 acres of land at the Muse Wildlife Management Area.

II.     Discussion: The Muse WMA (MWMA) consists of 1,972.5 acres in Brown County acquired by donation with the stipulation that it be managed for wildlife. The operation of MWMA includes the development and management of wildlife habitats and populations of indigenous and migratory wildlife species. MWMA also provides areas to demonstrate habitat development and wildlife management practices to landowners and other interested groups; develop new techniques for managing wildlife populations and habitat through on-the-ground research designed for local issues and conditions; and to provide public hunting.

The donation tract included an approximately 19-acre tract of land that lies across a county road from the main body of the MWMA, which makes management of the 19-acre disconnected tract difficult and impractical.

TPWD staff would like to begin the process of providing public notice and obtaining public input regarding the possible sale of this 19 acre tract with the stipulation that it be managed in perpetuity by a wildlife management plan provided by TPWD.

Attachments – 3

  1. Exhibit A – Location Map
  2. Exhibit B – Vicinity Map
  3. Exhibit C – Site Map

Work Session Item No. 13
Exhibit A

Location Map
Brown County

Location Map Brown County


Work Session Item No. 13
Exhibit B

Vicinity Map
Muse Wildlife Management Area

Vicinity Map Muse Wildlife Management Area


Work Session Item No. 13
Exhibit C

Site Map

Site Map


Work Session Item No. 15
Presenter: Corky Kuhlmann

Work Session
Acceptance of land donation – Bexar County
Approximately 232 acres at Government Canyon State Natural Area
November 4, 2015

I.             Executive Summary: The City of San Antonio (COSA) proposes to donate a 232-acre tract adjacent to Government Canyon State Natural Area (SNA) to Texas Parks and Wildlife Department (TPWD) for addition to the SNA.

II.          Discussion: The “Goodhorse Ranch” is a 232-acre tract of land adjacent to the north boundary of Government Canyon SNA. The tract has an approved masterplan with COSA for 400 lots and available sewer and water service from the San Antonio Water System (SAWS).  No subdivision tracts were sold, and the property remains intact, save a small tract reserved for a SAWS water tower. The tract is currently for sale, and because it lies entirely in the Edwards Aquifer Recharge Zone, The Nature Conservancy (TNC) has it under contract for purchase to help protect aquifer recharge. TNC will assign its contract to buy the land to COSA. Consistent with the long-term management of other tracts adjacent to the SNA acquired by COSA, COSA proposes to donate the tract to TPWD for addition to the SNA. The tract would be encumbered by a conservation easement to protect the aquifer recharge values, but would otherwise be incorporated into the overall resource management and public use plans for the SNA.

COSA plans to close the transaction before the end of February, 2016, and requests that TPWD allow the property to be transferred directly to TPWD at closing, to minimize staff time and closing costs. COSA will assume all acquisition, due diligence and closing costs. Staff requests permission to begin the public notice and input process.

Attachments – 3

  1. Exhibit A – Location Map
  2. Exhibit B – Vicinity Map
  3. Exhibit C – Site Map

Work Session Item No. 15
Exhibit A

Location Map for Government Canyon SNA in Bexar County

Location Map for Government Canyon SNA in Bexar County


Work Session Item No. 15
Exhibit B

Vicinity Map for Government Canyon SNA – Northwest San Antonio

Vicinity Map for Government Canyon SNA – Northwest San Antonio


Work Session Item No. 15
Exhibit C

Site Map Showing Location of 232-Acre Subject Tract Relative to SNA

Site Map Showing Location of 232-Acre Subject Tract Relative to SNA


Work Session Item No. 16
Presenter: Ann Bright

(Executive Session Only)
Texas-Mexico Border Security and Deployment of Department Personnel
November 4, 2015

I.       Executive Summary: Staff will present an update on recent border activities, focusing on the role of game wardens in border operations.

II.        Discussion: Staff will discuss with the Commission the deployment of law enforcement personnel and equipment in connection with operations along the Texas-Mexico border, including an operational and logistical update, and information on safety protocols, and significant events and time-line of the recent border operations.


Work Session Item No. 17
Presenter: Ann Bright

(Executive Session Only)
Update on Regulatory Litigation
November 4, 2015

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.
  • Sustainable Texas Oyster Resource Management, LLC v. Texas Parks and Wildlife Department, Carter Smith, in his Official Capacity as Executive Director of the Texas Parks and Wildlife Department and Lance Robinson, in his Official Capacity as Deputy Division Director of the Texas Park and Wildlife Department, Cause No. CV-29629, in the 344th Judicial District Court, Chambers 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. 18
Presenter: Chairman T. Dan Friedkin

(Executive Session Only)
Personnel Matters
November 5, 2015

I.       Executive Summary: 

  • Annual Performance Evaluation of Texas Parks and Wildlife Department Executive Director