Commission Agenda Item No. 7
Presenter: Alan Cain

Commission
Deer Management and Triple T Permit Rules
May 22, 2014

I.      Executive Summary:  This item seeks adoption of proposed changes to the regulations governing deer management permits (“DMP”) and permits to trap, transport, and transplant game animals and game birds (“Triple T” permits). The proposed amendments would:

II.     Discussion:  Parks and Wildlife Code (the Code), Chapter 43, Subchapter E, requires the Commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds (“Triple T” permits). Chapter 43, Subchapter R of the Code authorizes the Commission to issue and establish conditions for the use of a permit to manage deer on acreage enclosed by a fence capable of retaining white-tailed deer (“deer management permit,” or “DMP”).

Under the current DMP rules, the department specifies the latest date that deer can be kept in captivity under a permit and permit holders are not required to notify the department when deer are released. Staff has determined that requiring mandatory reporting of releases will allow the department to easily determine when permits have expired for purposes of determining the 30-day period that must transpire before deer can be trapped again under a new DMP. DMP holders are currently authorized to introduce buck deer to a DMP pen for breeding purposes. The current rules do not address the replacement of buck deer that die within a DMP pen. Staff sees no reason not allow the introduction of replacement bucks.

Current Triple T rules prohibit the issuance of a Triple T permit for a property in the same permit year that deer held under a DMP have been released on the property. Staff has determined that this requirement is no longer necessary.

At the Work Session meeting on March 26, 2014, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the April 18, 2014 issue of the Texas Register (39 TexReg 3032). A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.    Recommendation:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to §65.132 and §65.135, concerning Deer Management Permit (DMP), and §65.103, concerning Trap, Transport, and Transplant Permit (Triple T), with changes as necessary to the proposed text as published in the April 18, 2014 issue of the Texas Register (39 TexReg 3032).”

Attachments – 2

  1. Exhibit A – Proposed DMP Rule
  2. Exhibit B – Proposed Triple T Rule

Commission Agenda Item No. 7
Exhibit A

DEER MANAGEMENT PERMIT RULES
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §65.132, 65.135, and §65.136, concerning Deer Management Permit (DMP).

         A DMP authorizes the permit holder to manage deer on acreage enclosed by a fence capable of retaining white-tailed deer in accordance with department regulations.  Except for buck deer temporarily introduced to a DMP pen, department regulations require deer held in a DMP pen to be released from the pen by no later than a date specified by the department in the DMP.

         The proposed amendment to §65.132, concerning Permit Application, would eliminate language that is no longer meaningful and clarify the period of validity of a DMP. Current subsection (a) stipulates that incomplete applications for a DMP will be returned to the applicant and will not be processed until complete. The department has migrated to a completely electronic permit application process that will not accept a DMP application that is incomplete, making the current rule text regarding incomplete applications inapplicable.  Therefore the proposed amendment would remove the reference to the return of incomplete applications.

         Current subsection 65.132(b) stipulates that a DMP is valid from the date of issuance through the last date on which deer are authorized to be released as specified in the permit. The department wishes to clarify that permit validity ceases when deer held under a DMP are released. The department wishes to prevent the provision from being misinterpreted to mean that if deer are released prior to the expiration date indicated on the permit, additional trapping and breeding activities are authorized. Therefore, the proposed amendment would clarify that a DMP is valid through the last release date authorized on the permit or the day that release occurs, whichever comes first.

         The proposed amendment to §65.135, concerning Detention of Deer, would allow the replacement of buck deer that die within a DMP pen through January 31 of the permit year. The department has been contacted by a permit holder who inquired as to the legality of replacing buck deer that die within a DMP. The permit holder was concerned that if a buck were to die before being able to breed the does in a DMP pen, the expense and trouble of the permitted activities would be fruitless. The department reasons that since DMP activities are authorized for a specific place and time under a department-approved deer management plan, there are no biological or enforcement concerns associated with allowing the replacement of buck deer through January 31 in the event of mortality. Therefore, the proposed amendment would allow the replacement of a dead buck in a DMP pen, following notification of the department and so long as the replacement buck is obtained from one of the following sources:  the acreage for which the DMP was issued; the holder of a permit to trap, transport, and transplant game animals and game birds (provided the DMP is an authorized release site under the permit); or the holder of a deer breeder permit (provided the DMP holder’s deer management plan authorizes the introduction of deer from a deer breeder facility). The caveats regarding the sources of replacement deer are necessary to ensure that deer introduced to a DMP pen are not unlawfully obtained. The notification requirement is necessary to ensure that department records reflecting the number and disposition of deer held under a DMP are accurate and to ensure compliance with the requirement that no more than one buck deer be in a DMP pen at any time.

         The proposed amendment to §65.136, concerning Release of Deer, would alter subsection (c) to reiterate that a DMP expires when deer are released, as discussed earlier in this preamble. The proposed amendment would add new subsection (e) to require a DMP holder to notify the department within 24 hours after the release of deer from a DMP pen. Under current rule, DMP holders are not required to notify the department when deer are released. When a DMP is issued, the department specifies the last day that deer can be retained in the DMP pen, but this does not prohibit a DMP holder from releasing dear prior to that date. Because the period of validity of a DMP terminates when deer are released, the potential exists for the department to be unaware that permit activities have concluded prior to the expiration date on the permit, which could cause confusion and misunderstandings. Therefore, in order to ensure that department records are kept as current as possible for purposes of efficient administration and enforcement, the proposed amendment would specify that a DMP holder notify the department by no later than 24 hours following the release of deer from a DMP pen.

2. Fiscal Note.

         Alan Cain, White-tailed Deer Program Leader, has determined that for each of the first five years that the proposed rules are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rules.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the increased efficiency of programs authorizing the management of a public resource.

         (B) 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), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. The department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the rules do not directly affect any small business or microbusiness; therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

         There also will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as the department has determined that the rules as proposed will not impact local economies.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2008, as a result of the proposed rules.

4. Request for Public Comment.

         Comments on the proposed amendments may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov.

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, §43.603, which authorizes the commission to establish conditions for the deer management permit.

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

         §65.132. Permit Application.

                 (a) Applicants for a DMP shall complete and submit an application on a form supplied by the department. Applications for a DMP shall be accompanied by a deer management plan containing the information stipulated by the application form and the nonrefundable fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees). Incomplete applications [will be returned to the applicant and] will not be processed until complete. A DMP will not be issued unless the applicant’s deer management plan has been approved by a Wildlife Division technician or biologist assigned to write wildlife management plans.

                 (b) A permit under this subchapter is valid from the date of issuance through the last release date authorized under the permit or the date that release occurs, whichever comes first.

                 (c) – (g) (No change.)

         §65.135. Detention of Deer.

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

                 (b) The holder of valid DMP may replace a buck deer that dies in a DMP pen after being lawfully introduced, provided:

                          (1) such replacement takes place no later than January 31 of the current permit year; and

                         (2)  the replacement buck deer to be introduced to a DMP pen under the provisions of this subsection is obtained from:

                                  (A) the acreage for which the DMP was issued;

                                  (B) the holder of a valid permit issued under the provisions of Subchapter C of this chapter (relating to Permits to Trap, Transport, and Transplant Game Animals and Game Birds) that authorizes the destination DMP pen as the release site ; or

                                  (C) the holder of a valid permit held under the provisions of Subchapter T of this chapter (relating to Deer Breeder Permits), if the DMP holder’s deer management plan authorizes the introduction of deer from a deer breeder facility.

                 (c) The replacement of a buck deer under the provisions of subsection (b) of this section may not take place until after the department has been notified via the department’s Internet-based notification system that:

                         (1) the death of a buck deer in a DMP pen has occurred; and

                         (2) the DMP holder intends to replace the dead buck deer.

         §65.136. Release of Deer.

                 (a) Release of deer shall be effected by removing, for a total of at least 20 feet, those components of a pen that serve to maintain deer in a state of detention within the pen; however, no opening shall be less than 10 feet in width. Such components shall be removed for no fewer than 30 consecutive days.

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

                 (c) All deer within a DMP pen shall be released on or before the date specified for the facility by the department. The period of validity for a DMP terminates when any deer are released under the provisions of this section.

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

                 (e) The holder of a DMP shall notify the department no later than 24 hours following the release of deer under this section. The notification shall be via the department’s Internet-based notification application.

         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


Commission Agenda Item No. 7
Exhibit B

PERMITS TO TRAP, TRANSPORT, AND TRANSPLANT
GAME ANIMALS AND GAME BIRDS
PROPOSAL PREAMBLE

1.  Introduction.

         The Texas Parks and Wildlife Department (the department) proposes an amendment to §65.103, concerning Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds (popularly known as “Triple T” permits). The proposed amendment would remove subsection (h), which prohibits the issuance of a Triple T permit to authorize the trapping of deer on a property if deer have been released on that property under a Deer Management Permit (DMP) in the same permit year. A DMP authorizes the permit holder to manage deer on acreage enclosed by a fence capable of retaining white-tailed deer in accordance with department regulations. Department regulations require deer held in a DMP pen to be released from the pen by a date specified by the department.  Current department regulations do not permit the trapping of deer from a property pursuant to a Triple T permit if deer have been released onto that property from a DMP pen in the same permit year (September 1 – August 31). In reviewing the Triple T regulations, staff has determined that so long as a property from which deer will be trapped meets the criteria established in §65.103, concerning Trap, Transplant, and Transport Permit, it is immaterial that deer have been released there from a DMP pen.  Although it is possible that a deer released from a DMP pen could have been introduced into the DMP pen from another property pursuant to Triple T permit or introduced to the DMP pen from a deer breeder facility, most deer released from DMP pens originate from the property from which deer are to be moved under the Triple T permit.  As a result, there is no biological or enforcement reason to continue to disallow the trapping of deer from a property pursuant to a Triple T permit if deer have been released onto that property from a DMP pen in the same permit year. The proposed amendment will reduce administrative burdens on department staff and offer greater flexibility to landowners and land managers.

2. Fiscal Note.

         Alan Cain, White-tailed Deer Program Leader, has determined that for each of the first five years the rule as proposed is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the increased efficiency of programs authorizing the management of a public resource.

         (B) 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), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. The department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the rules do not directly affect any small business or microbusiness; therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

         There also will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as the department has determined that the rules as proposed will not impact local economies.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2008, as a result of the proposed rules.

4. Request for Public Comment.

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

5. Statutory Authority.

         The amendment is proposed under Parks and Wildlife Code, §43.061, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43.

6. Rule Text.

         §65.103. Trap, Transport, and Transplant Permit (Triple T).

                 (a) – (g) (No change.)

                 [(h) No permit shall be issued for any trapping activity on a property or portion of a property if deer held under a Deer Management Permit have been released on the property or portion of the property in the same permit 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