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Commission Agenda Item No. 3
Presenter: Alan Cain

Action
Managed Lands Deer Program Fees and Amendments to Rules
Recommended Adoption of Proposed Changes
January 23, 2020

I.      Executive Summary: With this item, the staff seeks permission to publish proposed amendments governing the Managed Lands Deer Program (MLDP) in the Texas Register for public comment. The proposed amendments would: 

II.     Discussion: Under Texas Parks and Wildlife Code chapter 42, the Texas Parks and Wildlife Commission (Commission) by rule may modify or eliminate the tagging, carcass, final destination, or final processing requirements or provisions of §§42.001, 42.018, 42.0185, 42.019, or 42.020, or other similar requirements or provisions of that chapter. Under Texas Parks and Wildlife Code chapter 43, subchapter Y, the Commission is authorized to impose a fee by rule for participation in the MLDP.

The MLDP is an extremely popular program that provides landowners and land managers with additional flexibility to manage deer populations, improve habitats, and provide greater hunting opportunities. The proposed rules (located at Exhibits A and B) would clarify existing program provisions, establish fees for participation in the MLDP, and make other non-substantive, housekeeping-type changes.

At the Commission Work Session meeting on November 6, 2019, the staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the December 6, 2019 issue of the Texas Register (44 TexReg 7488, 7489).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  The staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §53.5, concerning Recreational Hunting Licenses, Stamps, and Tags, and 31 TAC §65.29, concerning the Managed Lands Deer (MLD) Programs, with changes as necessary to the proposed text as published in the December 6, 2019 issue of the Texas Register (44 TexReg 7488, 7489).”

Attachments – 2

  1. Exhibit A – Proposed MLDP Fee Rule
  2. Exhibit B – Proposed MLDP Rule

Commission Agenda Item No. 3
Exhibit A

MANAGED LANDS DEER PERMIT FEE RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §53.5, concerning Recreational Hunting Licenses, Stamps, and Tags. The proposed amendment would establish fees for participation in the Managed Lands Deer Program (MLDP) administered by the department. The MLDP is an extremely popular program providing landowners and land managers with additional flexibility to manage deer populations, improve habitats, and provide greater hunting opportunities under the guidance of department biologists. Demand in MLDP participation has increased ten-fold since 2000, which has presented significant challenges for the department, primarily with respect to the allocation of workforce resources to meaningfully engage with MLDP participants, meet technical guidance requests, and administer the MLDP. In response, the Texas Legislature earlier this year enacted Senate Bill 733, which explicitly authorizes the commission to establish a fee for participation in the MLDP.

        The proposed amendment would establish a $30 fee for each management unit within a property that is enrolled in the Harvest Option (HO), provided the property is not part of an aggregate acreage enrolled in the MLDP; a $30 fee for each aggregate acreage enrolled in the HO; a $300 fee for the first management unit of each property enrolled in the Conservation Option (CO) plus a $30 fee for each additional management unit of a property enrolled in the CO; a $300 fee for each aggregate acreage enrolled in the CO; and a $30 fee for each management unit of a wildlife management association or cooperative enrolled the CO. The department has determined that fees for HO participation should be less than those for CO participation because administration of the HO places substantially less demand on agency resources than that for the CO, participation in which includes customized habitat and harvest recommendations from department staff as well as program benefits not available to HO participants. Similarly, because wildlife management associations and cooperatives for the most part desire assistance only with respect to the harvest of antlerless deer, the department has determined that fees for those types of entities should reflect that smaller footprint.

        The fee amounts were selected by the department after soliciting and receiving input from department staff, stakeholder groups, and advisory committees regarding what would be a reasonable fee for participation in the MLDP considering the benefits received, the demands on department staff in administering the various options available to landowners under the MLDP, and which would not result in significant attrition from the MLDP by landowners. The intended purpose of the fees is to support additional biologist positions and maintenance of the department’s online Land Management Assistance (LMA) system that is used to administer MLDP.

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 fiscal implications to the department as result of administering or enforcing the rule. The department estimates an increase in revenue of approximately $1,545,420.00 per year as a result of the imposition of fees for the various levels of MLDP participation.

        There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the continued ability of the agency to provide landowners and land managers with effective technical guidance for deer management that in return provides additional ecological benefits.

        There will be no adverse economic effect on persons required to comply with the rule as proposed, as participation in the MLDP is not mandatory and resource management can still be attained by landowners and land managers under existing harvest rules.

        (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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts” 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.

        (C) The department has determined that because the proposed rule creates fees for voluntary participation in a resource management program administered by the department for the sole purpose of enhancing the enjoyment and use of public wildlife resources that by statute cannot be bought, sold, or harvested for profit in this state (i.e., that cannot be a commercial commodity), there is therefore no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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

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

        (F) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:  neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs, as the need for additional employees to administer the MLDP already exists; not result in a need for additional General Revenue funding; not affect the amount of any existing fee, but will create new fees; create a new regulation to impose fees for participation in the MLDP; expand an existing regulation (by providing for a fee for MLDP participation); potentially decrease the number of individuals subject to regulation, if current levels of participation in the MLDP decrease; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Alan Cain (white-tailed deer program) at (830) 480-4038, e-mail: alan.cain@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter Y, which authorizes the establishment of a fee for participation in the MLDP.

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

6. Rule Text.

        §53.5. Recreational Hunting Licenses, Stamps, and Tags.

                 (a) – (c) (No change.)

        (d) Managed Lands Deer Program (MLDP). The annual fees for participation in the Managed Lands Deer Program under §65.29 of this chapter are as follows and are nonrefundable.

                         (1) Properties enrolled in the Harvest Option (HO).

                                  (A) For each management unit within a property that is not part of an aggregate acreage — $30; and

                                  (B) For each aggregate acreage — $30.

                         (2) Properties enrolled in the Conservation Option (CO).

                                  (A) Enrollment by management unit.

                                          (i) For the first management unit within a property — $300;

                                          (ii) For each additional management unit within a property — $30; and

                                          (iii) For each management unit within a wildlife management association or cooperative — $30.

                                  (B) Enrollment by aggregate acreage — $300.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Commission Agenda Item No. 3
Exhibit B

MANAGED LANDS DEER PROGRAM RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §65.29, concerning the Managed Lands Deer (MLD) Programs. The proposed amendment would consist of several components. First, the proposed amendment would change the title of the section to reflect the fact that the Managed Lands Deer Program is a single program, and not multiple programs.

        Next, the proposed amendment would add definitions for “aggregate acreage” and “management unit” to subsection (a), which is necessary to differentiate between the options available for enrollment of multiple portions of a tract of land or multiple tracts of land in the MLDP.  “Aggregate acreage” would be defined as “contiguous tracts of land, to, from, and between which deer have complete and unrestricted access, combined by multiple landowners to create an area of land for the purpose of enrollment in the MLDP.”  “Management unit” would be defined as “a specific portion of a tract of land enrolled in the MLDP for which the department shall specify a harvest quota and tag issuance.”

        The proposed amendment also would update a definition. The department has determined that the term “Resource Management Unit” does not accurately describe the scale at which deer population data are utilized by the department under the MLDP and should be re-titled “Deer Management Unit.” The proposed change is made throughout the rule.

        Next, the proposed amendment would alter subsection (b)(1), (9), and (10) to create a new deadline for decisions to decline participation in the MLD program, stipulate that date as the deadline for fee payment for program participation, and provide for default harvest regulation in the event that a program participant does not remit the required fee by the deadline. The current rules stipulate September 15 as the deadline for declining program participation, which the proposed amendment would replace with “the Friday closest to September 30.” Since the proposed amendment also would require fee payment by no later than the Friday closest to September 30 in order for MLDP enrollment to be valid, the department has determined that instead of having two deadlines for essentially the same thing, it is prudent to have one deadline. The Friday closest to September 30 was selected because the period of validity for MLDP tags begins on the Saturday closest to September 30. Additionally, the proposed amendment would provide that failure to timely remit required fees will result in disqualification for program participation and automatic default to the harvest regulations established by §65.42, relating to Deer (i.e., the standard county seasons, bag limits, special provisions, etc.). Obviously, failure to remit required fees should not result in enjoyment of program benefits. The proposed amendment also corrects an internal reference that is missing from the current rule.

        The proposed amendment would also alter subsection (c)(1) and (2) to provide that the department shall issue a harvest quota for each management unit of a tract of land enrolled in the HO or CO. The department has determined that on a single tract of land it is necessary to provide a harvest quota and tag issuance for unique management units within the tract of land (i.e., the property is divided into multiple "high-fenced" pastures) or that landowners may desire to have a harvest quota and tag issuance for unique management units with the tract of land (i.e., separate pastures are leased to different groups of hunters).

        The proposed amendment would also amend subsection (c)(2) to expressly provide for the use of MLDP tags on any tract of land within an aggregate acreage enrolled under the CO. The current rule allows participants in the HO to use tags on any property within an aggregate acreage. The department has determined there is no reason not to allow this practice on aggregate acreages under the CO as well.

        Finally, the proposed amendment would make non-substantive modification to provisions regarding the enrollment of aggregate acreages in the HO and CO in order to utilize consistent language and rule structure and avoid confusion.

2. Fiscal Note.

        Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to the department as result of administering or enforcing the rule. The department estimates an increase in revenue of approximately $1,545,420.00 per year as a result of the imposition of fees for the various levels of MLDP participation.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the continued ability of the agency to provide landowners and land managers with effective technical guidance for deer management that in return provides additional ecological benefits.

        (B) There will be no adverse economic effect on persons required to comply with the rule as proposed, as participation in the MLDP is not mandatory and resource management can still be attained by landowners and land managers under existing harvest rules.

        (C) 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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts” 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 because the proposed rule creates fees for voluntary participation in a resource management program administered by the department for the sole purpose of enhancing the enjoyment and use public wildlife resources that by statute cannot be bought, sold, or harvested for profit in this state (i.e., that cannot be a commercial commodity), there is therefore no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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

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

        (F) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase in the number of full-time equivalent employee needs, as the need for additional employees to administer the MLDP already exists; not result in a need for additional General Revenue funding; not affect the amount of any existing fee, but will create new fees; create a new regulation requiring fees for participation in the MLDP; expand an existing regulation (by providing for a fee for MLDP participation); potentially decrease the number of individuals subject to regulation, if current levels of participation in the MLDP decrease; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Alan Cain (white-tailed deer program) at (830) 480-4038, e-mail: alan.cain@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; Chapter 42, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, or final processing requirements or provisions of Section 42.001, 42.018, 42.0185, 42.019, or 42.020, or other similar requirements or provisions of that chapter; and Chapter 43, Subchapter Y, which authorizes the commission to impose a fee by rule for participation in the MLDP.

        The proposed amendment affects Parks and Wildlife Code, Chapters 61, 42, and 43.

6. Rule Text.

        §65.29. Managed Lands Deer Program (MLDP)[(MLD) Programs].

                 (a) Definitions. The following words and terms shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this section shall have the meanings assigned in the Texas Parks and Wildlife Code.

       (1) Aggregate acreage—Contiguous tracts of land, to, from, and between which deer have complete and unrestricted access, combined by multiple landowners to create an area of land for the purpose of enrolment in the MLDP.

                         (2)[(1)] Landowner — Any person who has an ownership interest in a tract of land.

                         (3) Management unit—a tract of land or a specific portion of a tract of land enrolled in the MLDP for which the department shall specify a harvest quota and tag issuance. 

                         (4)[(2)] MLDP — The Managed Lands Deer Program established by this subchapter, which consists of:

                                  (A) the Harvest Option (HO) set forth in subsection (c)(1) of this section; and

                                  (B) the Conservation Option (CO) set forth in subsections (c)(2) and (d) of this section.

                         (5)[(3)] MLDP tag — A tag issued by the department to a participant in any option under this section.

                          (6)[(4)] Program participant — A landowner or a landowner’s authorized agent who is enrolled in the MLDP.

                         (7)[(5)] Deer[Resource] management unit (DMU)[(RMU)] — An area of the state designated by the department on the basis of shared characteristics such as soil types, vegetation types, precipitation, land use practices, and deer densities.

                         (8)[(6)] Unbranched antlered deer — A buck deer having at least one antler with no more than one antler point.

                         (9)[(7)] Wildlife Management Plan (WMP) — A written document on a form furnished or approved by the department that addresses habitat and population and management recommendations, associated data, and data collection methodologies.

                         (10)[(8)] Wildlife Management Associations and Cooperatives — A group of landowners who have mutually agreed in writing to act collectively to improve wildlife habitat and populations on their tracts of land.

                 (b) General Provisions.

                         (1) A landowner and the landowner’s tract(s) of land are enrolled:

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

                                  (C) An enrollment is not valid unless the applicant has remitted the fees prescribed by §53.5 of this title (relating to Recreational Hunting Licenses, Stamps, and Tags) to the department on or before the Friday closest to September 30 of the year for which program participation is sought.

                         (2) – (8) (No change.)

                         (9) If an applicant does not wish to engage in program participation, the applicant must affirmatively decline program participation by the Friday closest to September 30[September 15] via the department’s online web application. On an enrolled tract of land for which a program participant has failed to timely decline participation as provided in this paragraph, the provisions of this section continue to apply to the harvest of deer until the last day of tag validity in the year following application.

                         (10) The provisions of this section cease effect and the provisions of §65.42 of this title (relating to Deer) apply on any tract of land for which:

                                  (A) [On a tract of land for which] an applicant has timely declined participation under the provisions of paragraph (9) of this subsection; or

                                  (B) the fees required by §53.5 of this title have not been remitted in accordance with subsection (b)(1)(C) of this section[, the provisions of §65.42 of this title (relating to Deer) apply].

                         (11) (No change.)

                 (c) MLDP—White-tailed Deer. The provisions of this subsection shall govern the authorization and conduct of MLDP participation with respect to white-tailed deer.

                         (1) Harvest Option (HO).

                                  (A) (No change.)

                                  (B) An aggregate acreage may be enrolled in the HO, provided:

                                          (i) the application contains the name, address, and express consent of the landowner of each tract of land comprising the aggregate acreage for which enrollment is sought; and

                                          (ii) a single program participant is designated to receive MLDP tags for the aggregate acreage.

                                  [(B) Multiple landowners may combine contiguous tracts of land to create an aggregate acreage for program enrollment.]

                                          [(i) A landowner or authorized agent participating in the MLDP under the provisions of this subparagraph must designate a single program participant to receive MLDP tags.]

                                          [(ii) MLDP tags issued under the provisions of this paragraph may be utilized on any tract of land within the aggregate acreage enrolled in the MLDP.]

                                  (C) The department shall specify a harvest quota establishing the maximum number of buck, unbranched antlered, or antlerless deer to be harvested on each management unit within a tract of land or aggregate acreage enrolled in the HO.  The harvest quota shall be based on:

                                          (i) department-derived survey data for the DMU[RMU] in which the tract of land is located;

                                          (ii) – (iv) (No change.)

                                  (D) – (E) (No change.)

                         (2) Conservation Option (CO).

                                  (A) – (D) (No change.)

                                  (E) On each management unit within a tract of land enrolled under this subsection:

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

                                  (F) – (G) (No change.)

                                  (H) Special Provisions

                                          (i) (No change)

                                          (ii) An aggregate acreage may be enrolled in the CO [Other Aggregate Acreages. Multiple landowners may combine contiguous tracts of land to create an aggregate acreage for program enrollment], provided:

                                                   (I) the application contains the name, address, and express consent of the landowner of each tract of land comprising the aggregate acreage for which enrollment is sought; [and]

                                                    (II) a single WMP that addresses all tracts of land within the aggregate acreage is submitted and approved by the department[.]: and

                                                   (III) [the program participants designate] a single program participant is designated to receive MLDP tags for the aggregate acreage.

                                                  (IV) MLDP tags issued under the provisions of this paragraph may be utilized on any tract of land within the aggregate acreage enrolled in the MLDP.  

                                 (I)  (No change).

                 (d) – (f) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to within the agency’s authority to adopt.

        Issued in Austin, Texas, on