TPWD: November 10, 2020 Commission Meeting Agenda

November 9-10, 2020, Commission Meeting Agenda

Work Session

Commission Agenda Items

August 26-27, 2020, Transcripts

Commission Agenda Item No. 3
Presenter: Mitch Lockwood

Action
Deer Breeding and Other Permitting Rule Amendments
Recommended Adoption of Proposed Changes
November 10, 2020

I. Executive Summary: With this item, the Texas Parks and Wildlife Department (TPWD) staff seeks permission to publish a suite of proposed rules to harmonize regulations governing various permits concerning deer, including permits to trap, transport, and transplant game animals and game birds (known as “Triple T”); deer management permits (DMP); deer breeder’s permits; address lacunae in existing rules with respect to chronic wasting disease (CWD) management strategies; and standardize Triple T permit application and issuance standards across various species in the Texas Register for public comment. The proposed rulemakings would function collectively to:

Make changes necessary to eliminate various rule provisions that are non-viable artifacts of pre-2016 disease management strategies;
Amend rules governing deer breeders to:
Clarify terminology and requirements for the use of transfer permits;
Clarify herd inventory requirements;
Require the return of fawns from nursing facilities by 120 days following birth;
Implement specific notification requirements for the conduct of attempts to recapture escaped breeder deer;
Require harvest management plans for adjoining properties under common ownership upon failure to recapture deer escaped from not movement qualified (NMQ) facilities;
Clarify provisions regarding commingling of breeder deer with other animals;
Prohibit the transfer of breeder deer to counties with closed seasons for the species;
Prohibit cloning of breeder deer;
Clarify facility infrastructure rules, including pen inspection and pen reconfiguration provisions; and
Specify requirements for authorized facility inspectors.
- Amend Triple T rules to:
- Standardize the application, issuance, and reporting processes for all species of game animals and game birds;
- Require georeferenced maps;
- Address permit issuance for activities on aggregate acreages; and
- Update and modernize standards for TPWD decisions to refuse permit issuance.
  - Amend DMP rules to:
  - Standardize terminology; and
  - Update references and citations.
    - Amend disease management rules to require mortalities to be reported within 14 days of discovery and CWD test samples to be submitted within 14 days of collection; and
    - Effect numerous housekeeping and structural reorganization type changes.

II. Discussion: Texas Parks and Wildlife Code authorizes the issuance of various permits for the possession and movement of game animals and game birds, including permits specifically for deer. Prior to 2015, TPWD’s regulatory apparatus for detecting CWD in deer held under various deer permits was piecemeal, scattered between various rules applicable to specific types of permits. With the discoveries of multiple CWD-positive deer in free-ranging and captive herds since 2015, TPWD moved to impose significantly more robust testing protocols and movement restrictions. Those rules are contained in Texas Parks and Wildlife Code chapter 65, subchapter B, and supersede any CWD testing rules that preceded them.

The proposed rules would reconcile all CWD provisions across the various permit regulations. Additionally, the proposed rules would address unclear or uncovered areas of current breeder rules to provide greater assurances of CWD mitigation with respect to transfer activities, reporting and recordkeeping, escaped breeder deer, and other matters, as well as provide for standardization of Triple T application and issuance for all species of game animals and game birds. The proposed rules also modernize, update, and effect housekeeping-type changes.

The staff received permission to publish the proposed rules at the August 26, 2020, Work Session meeting. The proposed rules were published in the October 2, 2020, issue of the Texas Register (45 TexReg 6962, 6963, 6971, 6972). A summary of public comment will be presented at the time of the meeting.

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

“The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §§65.101-65.103, 65.107, 65.109, 65.111, and 65.115, concerning Permits to Trap, Transport, and Transplant Game Animals and Game Birds; an amendment to 31 TAC §65.133, concerning Deer Management Permit; the repeal of 31 TAC §65.604, amendments to 31 TAC §§65.601-65.603, 65.605, and 65.610-65.612, and new §65.604, concerning Deer Breeder’s Permits; and 31 TAC §65.92, concerning CWD Testing, with changes as necessary to the proposed text as published in the October 2, 2020 issue of the Texas Register (45 TexReg 6962, 6963, 6971, 6972).”

Attachments – 4

Exhibit A – Proposed Breeder Rules
Exhibit B – Proposed Triple T Rules
Exhibit C – Proposed DMP Rules
Exhibit D – Proposed Disease Management Rules

Commission Agenda Item No. 3
Exhibit A

DEER BREEDER’S PERMIT RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §65.604, amendments to §§65.601-65.603, 65.605, and 65.610-65.612, and new §65.604, concerning Deer Breeder Permits. In general, the amendments harmonize the subchapter with the contents of Chapter 65, Subchapter B, concerning Disease Detection and Response, but also make specific substantive and non-substantive changes as noted.

Prior to 2015, the department’s regulatory apparatus for detecting chronic wasting disease (CWD) in deer breeding facilities was contained in this subchapter (Chapter 65, Subchapter T). The testing standards imposed by the rules were considered to be at best minimally efficacious for detecting CWD in captive deer populations and were intended to be the least burdensome regulatory footprint possible in light of the fact that up to that point in time, CWD had not been discovered in captive breeding facilities in Texas. However, with the discoveries of multiple CWD-positive deer in deer breeding facilities in 2015 and 2016, the department adopted rules that imposed more robust testing protocols and movement restrictions. Those rules are contained in Chapter 65, Subchapter B, and supersede the testing rules currently contained in Chapter 65, Subchapter T.

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.

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 declines, and human dimensions research suggests that hunters will 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 captive or free-ranging cervid populations.

The proposed repeal of §65.604, concerning Disease Monitoring, is necessary because the section is now superfluous and unnecessary, since disease monitoring and testing requirements for CWD, including those for deer breeders and persons who obtain or receive deer from deer breeders, are contained in Chapter 65, Subchapter B.

The proposed amendment to §65.601, concerning Definitions, would eliminate the definitions for “accredited test facility,” “certified wildlife biologist,” “release,” and “sale.” The definition for “accredited test facility” is no longer necessary since disease monitoring and testing requirements for CWD are contained in Chapter 65, Subchapter B. The proposed amendment to §65.603(b) would create a “certified facility inspector” function to replace that previously performed under the rubric of “certified wildlife biologist,” which the department has determined is not an appropriate descriptor of the activities being performed. The definitions for “release” and “sale” are being eliminated because the department is using the term “transfer” to encompass all situations in which a transfer permit is required, which includes purposes of release and/or sale. For the same reasons, the proposed amendment would alter the definition of “transfer permit” to simply state that a transfer permit is a permit authorizing the movement of breeder deer to any person or registered facility authorized to possess or receive breeder deer. Finally, the proposed amendment would replace the term “unique number” with "unique identifier" to be consistent with terminology used in Parks and Wildlife Code, §43.3561, and clarify that a unique identifier is issued by the department to the deer breeder, who will ultimately assign the number to a breeder deer born in that permit holder’s facility.

The proposed amendment also would alter the definition of “facility” to specify that enclosures within a facility must be contiguous (physically bordering or adjoining each other; connected). The department, in consultation with Texas Animal Health Commission (TAHC), is managing CWD-positive deer breeding facilities that in some cases consist of multiple enclosures that are not contiguous with each other and in some instances are separated by miles of pasture land or private and county roads. Under current rules, deer can be moved between such enclosures without activation of transfer permits. Consequently, neither the department nor TAHC have accurate records documenting which non-contiguous enclosure any particular deer is actually in, or any documentation of movement history between enclosures, which challenges both agencies’ disease-management strategies. Requiring a separate facility identification number for each enclosure that is physically separate from other enclosures and requiring a transfer permit to be activated to transfer deer between such enclosures is a prudent disease management and prevention action that is expected to introduce minimal, if any, burden on the permittee; however, the department notes that proposed amendment would require persons who wish to maintain multiple enclosures that are not contiguous to obtain a separate deer breeding permit for each enclosure that is not contiguous to other enclosures.

The proposed amendment to §65.602, concerning Permit Requirement and Permit Privileges; General Provisions, would clarify subsection (a) to provide that a person may possess live deer in this state by means other than a permit (e.g., an authorization to temporarily retain breeder deer in an enclosure to allow them to acclimate to a release site), and remove a generic reference to the subchapter in favor of a reference to a specific provision of the Parks and Wildlife Code that enumerates the specific statutory privileges enjoyed by the holder of a deer breeder’s permit. As mentioned previously in this preamble, the department is replacing terms such as “sale” and “release” with the term “transfer” because most if not all instances in which a breeder deer is moved require the activation of a transfer permit; those changes are made throughout the proposed rulemaking. Similarly, the proposed amendment would eliminate current paragraphs (b)(4), (6) and (7) because the activities addressed in those provisions are also effected by activation of a transfer permit. The proposed amendment also would add new subsection (d) to stipulate that registered breeding facilities may possess only white-tailed deer or only mule deer. The department will not issue a permit allowing both species of deer to be kept in a single facility, which is necessary to eliminate the possibility of accidental or intentional comingling of species and hybridizing. Similarly, the proposed amendment would add new subsection (e), which would stipulate that other than deer that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, no deer, livestock, exotic livestock, or similar animals may be present in, confined in, or have access to a deer breeding facility other than the deer listed on the reconciled herd inventory for the facility reported to the department, which is necessary to reduce disease risks that could be introduced by other animals and not limited to CWD-susceptible species.

The proposed amendment to §65.603, concerning Application and Permit Issuance, would clarify application requirements with respect to the infrastructure of a prospective deer breeding facility, require an inspection of the facility to performed by a facility inspector authorized by the department, and establish the minimum requirements for a person to become an authorized facility inspector.

The proposed amendments would clarify several areas regarding the content of applications for deer breeder permits. The current rules require an applicant to “submit a completed application to the department.” The application requires, among other things, a plat of the prospective facility (to include individual enclosures, the dimension and size of each enclosure; the approximate location of feeding and watering devices within each enclosure, the approximate location of man-made and/or natural shelters, and the location of all fences and gates). In addition, the application requires a letter of endorsement from a certified wildlife biologist attesting that the prospective facility meets the department’s regulatory requirements for facility standards; deer are not currently within the facility; that deer eventually introduced to the facility will have adequate access to food, water, and shade and/or shelter; the facility identified in the application is fully constructed and functional; and any additional information the biologist deems pertinent. The department has determined that the contents of the application relating to facility infrastructure should be specified by rule in order to avoid misunderstandings, confusion, or the implication that the information required in an application is voluntary rather than mandatory or that the accuracy of the information is open to interpretation by the applicant. To that end, the proposed amendment to §65.603 would require an application to include a diagram of the facility that clearly defines each distinct enclosure within the facility, including fences and gates, and would explicitly require the letter of endorsement from an authorized pen inspector to affirm that the infrastructure of a prospective deer breeding facility is adequate for the humane treatment of breeder deer (including adequate access to food, continuous supplies of water and ample cover or shelter), has been secured to prevent ingress to and egress from the facility by animals similar to deer or livestock, and that no animals similar to deer or livestock are present within the facility.

The proposed amendment to §65.603 also would alter current rules regarding facility inspections. Under current rule, prospective deer breeding facilities must be inspected by a certified wildlife biologist as a condition of potential licensure. The department has determined that although it is necessary to require facility inspections and to require them to be performed by persons with the educational and experiential background necessary to do so effectively, it is not necessary to require accreditation as a certified wildlife biologist. Therefore, proposed new subsection (b) would stipulate that an authorized facility inspector be a person not employed by the department who has been awarded a bachelor’s degree or higher in wildlife science, wildlife management, or related discipline; has at least three years of post-graduate experience associated with breeder deer within the five-year period preceding any facility inspection activity; has no record within the previous five years of non-compliance with department regulations regarding breeder deer herd inventories; and has not been finally convicted of or been assessed an administrative penalty for a legal violation that would prevent the person from being an agent or surrogate for a deer breeder under applicable department rules in Chapter 65, Subchapter U. The department reasons that it is appropriate to prohibit persons who exhibit a demonstrable disregard for laws and regulations governing wildlife from acting as an authorized facility inspector for the purposes of the subchapter.

The proposed amendment to §65.603 also would stipulate that additions to a facility must be approved by the department. Current rules require permittees to submit an accurate diagram of the facility indicating all changes to the facility; however, it is not explicitly stated that the diagram must be updated each time a change is made to the facility. The proposed amendment would remedy that.

Finally, the proposed amendment to §65.603 would amend a reference to a subsection within the section, which is necessary because the designation of the referenced subsection would change as a result of the proposed amendments.

Proposed new §65.604, concerning Disease Monitoring, would provide a reference to Chapter 65, Subchapter B, Division 2, concerning Chronic Wasting Disease – Movement of Deer, which contains applicable provisions governing disease management with respect to breeder deer.

The proposed amendment to §65.605, concerning Holding Facility Standards and Care of Deer, would amend subsection (a) to clarify that facility fencing requirements apply to all facilities authorized to hold breeder deer, including nursing and medical facilities.

The proposed amendment to §65.605 would also add new subsection (b) to require permittees to ensure that deer in a breeding facility have access to adequate food, water, and cover. Although the pen inspection required by §65.603, concerning Permit Application and Issuance, requires attestation that adequate food, a continuous supply of water, and ample cover or shelter is provided at any given breeding facility, the department believes it is important to stipulate that those things are not simply conditions for permit issuance, but expectations of day-to-day operations. The current rule does not explicitly address food, water, or shelter requirements, as the department has thus far considered that since breeder deer are at least anecdotally very valuable to deer breeders, it should be axiomatic that deer breeders would protect the deer they are permitted to possess; however, the department has become aware of situations in which permittees have failed to provide what the department considers to be basic standards of animal care, and in at least one instance a deer breeder has been cited for animal cruelty. Therefore, the department believes it is necessary to provide for such standards by rule.

The proposed amendment also would alter current subsection (b) to specify notification requirements for deer breeders in the event that a deer escapes from a breeding facility. Under current rule, a permittee must notify the department immediately upon discovering the escape of a deer from the breeding facility, which initiates a ten-day window for recapture efforts and provides for an additional five-day period provided the permittee proves to the department’s satisfaction that reasonable efforts have been made to recapture the deer. The department has encountered situations in which it is difficult to ascertain the nature and progress of a permittee’s efforts to recapture escaped deer, which is problematic from a disease management perspective. Therefore, the proposed amendment would require the notification to include a detailed description of the permittee’s intended efforts to recapture the deer, including the methods, dates, and times of attempted recapture efforts and a daily notification of the execution of those recapture efforts. The proposed amendment also would eliminate the additional five-day period for recapture and allow recapture and reintroduction to a deer breeding facility after 10 days only if the department approves that action for disease management purposes. The department believes that 10 days is sufficient time for bona fide recapture attempts to take place, and that reintroduction of escaped deer after that time is warranted only if the department has determined it is necessary, based on the CWD status of the facility in question and that of the surrounding landscape to which the deer has escaped.

The proposed amendment to §65.605 also would add new subsection (d) to address the failure to recapture breeder deer that escape from a deer breeding facility that is prohibited by law from receiving or transferring breeder deer under the provisions of Chapter 65, Subchapter B, Division 2 at the time of or subsequent to the escape. The proposed new subsection would address such instances by requiring the implementation of a disease-testing plan for the property where the breeding facility is located and any contiguous tract of land under common ownership. The disease-testing plan would specify CWD testing and reporting requirements for deer harvested on the affected properties and additional CWD testing requirements in the deer breeding facility. The intent of the proposed new subsection is to address concerns regarding deer that have escaped from breeding facilities known to be of epidemiological concern with respect to CWD.

The proposed amendment to §65.610, concerning Transfer of Deer, would amend subsection (a) to clarify that transfer permit requirements apply to breeder deer in a trailer or vehicle. The current provision requires activation of a transfer permit when deer are moved into or out of a facility but does not specifically indicate an exact point in time at which the transfer permit activation must occur. The department has determined that it is reasonable to assume that transfer activities have started when deer are loaded into a trailer or vehicle; thus, the proposed amendment would require a transfer permit to have been activated prior to deer being possessed in a trailer or vehicle.

The proposed amendment also would alter subsection (b) to comport its contents with the disease management provisions of Chapter 65, Subchapter B, which, as noted previously in this preamble, governs the movement of breeder deer pursuant to disease management regulations. The proposed amendment would eliminate paragraphs (1) – (4) and (6) and add clarifying language to the remaining paragraphs to comport terminology.

The proposed amendment also would add new subsection (c) to stipulate that white-tailed deer and mule deer may not be transferred to any facility located in a county for which there is no open season for that species. The department believes that it is biologically irresponsible to allow breeder deer to be transferred to destinations outside of the natural or historic range of the species, especially in light of the nearly 3,000 reported escapes of breeder deer and the 9,687 breeder deer that department inspections have determined cannot be accounted for by permittees responsible for such deer. Desert mule deer have evolved in and are adapted to a specific historical range in West Texas; to allow desert mule deer to be transferred to facilities outside their historic native range would introduce a host of potential known and unknown problems (transmission of diseases, parasites, etc.) that the department believes can be avoided by prohibiting movement outside of historic range.

The proposed amendment would eliminate the contents of current subsection (c) because they are superfluous in light of other provisions governing transfer permits (addressed earlier in this preamble) and replace them with the contents of current §65.610(d)(1), which provides that the department will not authorize the release of deer if the release would detrimentally affect existing populations or systems.

The proposed amendment would alter current subsection (d) by removing paragraph (1) as discussed previously in this preamble.

The proposed amendment would alter the provisions of current subsection (e) to clarify that the deer specifically identified on the transfer permit are the only deer that may be moved under the transfer permit during the 48-hour time period authorized by the permit, and that a transport manifest identifying the specific deer in possession while in transport must be physically possessed by the person in possession of the deer during transport if the transfer involves multiple trips, vehicles, or destinations. The intent of the proposed amendment is to remove any ambiguity as to what a transfer permit applies to or what a transfer permit specifically authorizes. The department has encountered situations in which permittees have activated a transfer permit, but the transfer permit does not accurately identify the deer in the transport vehicle or even the number of deer in the transport vehicle. Sometimes there are situations when a deer breeder makes multiple trips or uses multiple transport vehicles to complete a transfer, and it is important that each shipment of deer is accompanied by a transport manifest clearly identifying the specific deer on the transport vehicle. The department believes that it is reasonable to expect that in any given instance of transport, the deer in a trailer or means of transportation are in fact the deer identified on the transfer permit as the deer being transported.

Under the provisions of current subsection (e)(3), a transfer permit may be activated by phone or online. The proposed amendment would require all permit activations to be executed online, but would also provide for activation by phone or email in the event the department’s online system is unavailable. The department believes that the ubiquity of smart phones, tablets, laptops, and other devices makes phone notification unnecessary except in special circumstances.

The proposed amendment would non-substantively alter current subsection (e)(4) to clarify that the current requirement that an application for a transfer permit indicate the source and destination of the deer being moved and includes the facility identification numbers assigned by the department to the source and destination facilities. Similarly, the proposed amendment would alter current subsection (e)(5) to replace “all activities” with “movement of deer” for purposes of improved precision.

The proposed amendment to current subsection (e)(6) would replace “veterinarian” with “veterinarian’s medical facility for emergency medical treatment” to more precisely describe the destination and conditions under which a breeder deer may be transported without activation of a transfer permit, and would amend the provision to require that if deer moved without a transfer permit under the provision are removed from the means of transportation and temporarily housed in a location that may house other susceptible species at any point between departure from the source facility and return to the source facility, a transfer permit must be activated prior to the return of the deer to the source facility. The proposed new provision is necessary for epidemiological contact tracing in the event that the deer or the source facility become part of an epidemiological investigation at a later date. The proposed amendment would also clarify that an eligible-aged breeder deer that dies at or while being transported to or from a veterinary facility under the provisions of the proposed amendment is considered to be an eligible mortality for the purposes of the department’s CWD management rules contained in Chapter 65, Subchapter B.

The proposed amendment to §65.611, concerning Prohibited Acts, would consist of several actions. The proposed amendment would alter the provisions of subsection (b) to state that it is an offense to possess or place breeder deer in any place or facility if the herd inventory on file with the department does not account for the deer, which is necessary for purposes of disease control.

The proposed amendment also would add new subsection (d) to prohibit the possession of a breeder deer in a nursing facility later than 120 days following the deer’s birth. The current rules allow the transport of fawns to nursing facilities in order to provide nourishment until the fawns are self-sufficient. It is a generally accepted fact of deer biology that fawns have been weaned within the first 120 days of life. The department believes that fawns should be returned to their respective breeding facilities when they are capable of feeding on their own.

The proposed amendment also would add new subsection (e) to prohibit the commingling and/or interbreeding of white-tailed deer and mule deer. White-tailed deer and mule deer have different breeding strategies, breeding chronologies, habitat preferences, and predator evasion behaviors, all of which are important in sustaining populations. Hybrids in captivity have shown escape behaviors that are chaotic, confused, and would lead to lower survival probabilities. It is documented in research facilities that hybrids have a higher mortality rate than purebred white-tailed deer or mule deer, and research indicates that hybrid fawns have low survival rates. The department has determined that allowing the production of hybrids and/or their release is unwise.

The proposed amendment would also add new subsection (i) to specifically emphasize that an authorized facility inspector commits an offense by submitting the checklist or letter of endorsement required by the proposed rules if that person has not personally conducted an onsite inspection of the facility in question. The department notes that the offense would be a Class C Misdemeanor, which would give the department a less serious option to pursue for minor infractions, as opposed to a felony or Class B Misdemeanor prosecution for falsification of a government record that is also possible based on the same conduct.

The proposed amendment would also add new subsection (j) to clarify that it is an offense for any person to violate or fail to comply with the provisions of a disease-testing plan issued under the provisions of §65.605(d). Although the rules as proposed would require a permittee under certain specific circumstances to follow a disease-testing plan following the failure to capture an escaped deer, and failure to do so would constitute a violation of permit provisions and therefore be an offense, the department believes it is important to emphasize that failure to comply with the disease-testing plan is an offense.

The proposed amendment would add new subsection (k) to prohibit the cloning of white-tailed or mule deer except as specifically authorized under a department-issued permit. The department strongly believes that the unknown and unforeseeable biological consequences resulting from the cloning of native wildlife make it imperative to prohibit any such activity except for one possibility, which is credible scientific research predicated on a compelling scientific need.

The proposed amendment would add new subsection (l) to prohibit the possession of deer, livestock, exotic livestock, or similar animals in a deer breeding facility, or allow such animals to access a deer breeding facility.

Finally, the proposed amendment to §65.612, concerning Disposition of Deer, would make non-substantive change to comport the terminology in the section with changes made elsewhere in the proposed rules to standardize terminology with respect to transfer permits.

2. Fiscal Note.

Mitch Lockwood, Big Game Program 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 or local governments as a result of administering or enforcing the rules, as the rules will be administered and enforced by existing staff as part of their regular duties.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be in addition to better organized and more user-friendly regulations, a reduction of the probability of CWD and other diseases being spread to or from facilities 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.

There will be adverse economic effects on persons required to comply with the rule. Those effects will be identical to the effects on small and microbusinesses described later in this preamble.

(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.

There are currently 957 persons holding a deer breeder’s permit. The department does not have access to financial records of permittees; therefore, to ensure that this analysis does not inadvertently exclude any small business or microbusiness, the department assumes that all deer breeders are small or microbusinesses.

The proposed rules would require a facility to consist of contiguous enclosures, which means that permittees who currently operate facilities containing non-contiguous enclosures would either have to consolidate their deer in a single facility or obtain a deer breeder’s permit for each non-contiguous enclosure. Department records indicate that 107 permittees have facilities with enclosures that are not contiguous (82 of those facilities have two enclosures that are not contiguous, 21 facilities have three enclosures that are not contiguous, three facilities have four enclosures that are not contiguous, and one facility has five enclosures that are not contiguous). Therefore, the department estimates the cost of compliance to range from $0 (if all breeder deer are moved to a single facility) to multiples of $200 (depending on the number of non-contiguous enclosures for which a permit is sought) to a maximum of $1,000 (for the permittee with five non-contiguous enclosures, if a new permit is sought for each of the five enclosures). Additionally, the proposed rules could result in direct costs associated with current regulatory requirements regarding CWD surveillance testing, depending on the course of action selected by permitees whose facilities consist of non-contiguous enclosures. Current disease management rules (§65.95, concerning Movement of Breeder Deer) condition the ability to transfer breeder deer to, from, or between facilities on the results of mandatory continuous surveillance testing for CWD in each facility. The proposed rules, by requiring each non-contiguous enclosure to be a separate facility, would necessitate independent surveillance testing in each non-contiguous enclosure, which could result in additional testing costs, depending on the number of deer the permittee places in each such enclosure, the number of mortalities within that enclosure through time, the extent to which a permittee utilizes ante-mortem testing to maintain transfer status (ante-mortem tests require utilization of a veterinarian and are more expensive), and changes in CWD status resulting from the transfer of deer (if any) into or out of the enclosure. Because potential outcomes are dependent on multiple independent decision variables that are unknown to the department and cannot be predicted, it is impossible to precisely quantify the possible impacts to each of the 107 permitees that could be affected; however, the department estimates the impacts to affected permittees could range from no cost (if any given permittee consolidates all breeder deer in a single enclosure or set of contiguous enclosures) to higher costs (if the permittee allocates breeder deer to enclosures under new permits in such a fashion that additional ante-mortem testing is required to maintain movement qualified (MQ) status for the deer in each new facility). The highest possible cost to any permittee would be to the one permittee with five non-contiguous enclosures. Assuming the permittee distributed the total population of deer held under the permit equally amongst five new facilities and depended solely upon ante-mortem testing to maintain MQ status, the department estimates a maximum additional cost of compliance of $2,250.

The department considered several alternatives to the proposed rule. The department considered status quo, which was rejected because when epidemiological investigations are necessary it is imperative to know the movement history of each breeder deer in order to conduct contact tracing for deer that may subsequently have come into contact with suspect deer or deer environs. The department considered implementing a system allowing satellite enclosures with special notification and reporting requirements, which was rejected for reasons of avoiding unnecessary introduction of complexity to administration, enforcement, compliance, and disease tracing.

The proposed new rules would require that deer held under a breeder permit not be commingled with other deer, exotic species, or livestock. The department has no method to determine how many permittees would be affected by the proposed provisions but has determined that there could be some direct costs associated with segregating currently commingled menageries. The department has determined that such direct costs would be minimal, consisting of the labor and time necessary to remove all individuals other than the breeder deer from spaces that are inhabited by and accessible to only the breeder deer. The department considered several alternatives to the rules as proposed. The department considered following the status quo, which was rejected because the purpose of the proposed rule is to segregate breeder deer from all other animals for purposes of managing and mitigating possible CWD and other disease transmission. Another alternative that was considered was to require some sort of periodic inspection and/or testing of other animals kept in the same facility with white-tailed deer or mule deer, which was rejected because of concerns with statutory authority with respect to species other than indigenous wildlife and administrative complexity. Another alternative that was considered was to prohibit comingling of any species susceptible to CWD with breeder deer in a deer breeding facility, which was rejected because of concerns related to diseases other than CWD that could be transmitted to deer, including but not limited to bovine tuberculosis and epizootic hemorrhagic disease.

The proposed amendment would prohibit the cloning of deer under a deer breeder’s permit. The department is not aware of specific business models involving cloned deer but speculates that they could range from creating viable individuals for sale to propagating embryos to be sold or used for purposes of implantation in surrogate mothers. In any case, the department estimates that the proposed prohibition on cloning will not result in a direct adverse economic impact to any permittee, as the department is not aware of any permittees presently cloning deer and there are numerous other ways to propagate deer that are less costly than cloning. The department considered several alternatives to the proposed rule. The department considered remaining silent on the matter from the point of regulatory restraints. This alternative was rejected because the purpose of the rule is to prevent unintended negative consequences to populations of naturally occurring deer that could result from allowing the use of a technology that is not fully understood and cannot be definitively said to be free of negative outcomes. The department also considered allowing cloning under a set of special regulations specifically designed to carefully analyze and assess progress towards assurances of non-negative impacts to native populations of deer, which was rejected for reasons of administrative complexity and impacts to the regulated community. The department reasons that independent bona fide research activities will ultimately provide greater knowledge upon which to base future regulatory decisions.

The proposed rules will not affect rural communities.

(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 rules 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; not result in a need for additional General Revenue funding; not affect the amount of an existing fee (but could in some circumstances result in additional fees for non-contiguous enclosures if the deer breeder chooses to have them registered as facilities); not create a new regulation; expand existing regulations (by altering rules governing the use of transfer permits; requiring harvest management plans for properties under common ownership that adjoin NMQ facilities from which deer have escaped and not been recaptured; prohibiting the commingling of breeder deer with other animals; and prohibiting the cloning of breeder deer) but not limit an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, e-mail: mitch.lockwood@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendments and new section are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; 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, Subchapter E, and Chapter 61.

6. Rule Text.

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

[(1) Accredited test facility — A laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for Chronic Wasting Disease.]

(1)[(2)] Authorized agent — An individual designated by the permittee to conduct activities on behalf of the permittee. For the purposes of this subchapter, the terms ’deer breeder’ and ’permittee’ include authorized agents.

[(3) Certified Wildlife Biologist — A person not employed by the department who has been certified as a wildlife biologist by The Wildlife Society, or who:]

[(A) has been awarded a bachelor’s degree or higher in wildlife science, wildlife management, or a related educational field; and]

[(B) has not less than five years of post-graduate experience in research or wildlife management associated with white-tailed deer or mule deer within the past 10 years.]

(2)[(4)] Facility — One or more contiguous enclosures, in the aggregate and including additions, that are the site of deer breeding operations under a single deer breeder’s permit.

(3)[(5)]Movement qualified — A status, determined by the department, under which the transfer[removal] of deer to or from a facility is authorized.

[(6) Release — The intentional release of a live deer from a permitted facility, or from a vehicle or trailer at a location other than a facility.]

[(7) Sale — The transfer of possession or the delivery and release of deer for consideration and includes a barter and an even exchange.]

(4)[(8)]Serial Number — A permanent four-digit number assigned to a deer breeder by the department. A serial number shall be preceded by the prefix "TX".

(5)[(9)]Transfer permit — A permit authorizing the movement of breeder deer to or from a facility[a breeder facility, a nursing facility, or a deer management permit facility other than to an accredited veterinarian for medical purposes].

(6)[(10)] Unique identifier — As defined by Parks and Wildlife Code, §43.3561(a)(5).[Unique number — An alphanumeric number of not more than four characters assigned by the department to the breeding facility in which the breeder deer was born and unique to that breeder deer.]

§65.602. Permit Requirement and Permit Privileges; General Provisions.

(a) Except as provided in this chapter, no person may possess a live deer in this state unless that person possesses:

(1) a valid permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R; or

(2) specific written authorization under the provisions of this subchapter.

(b) In accordance with Parks and Wildlife Code, §43.357[Except as otherwise provided by this subchapter], a person who possesses a valid deer breeder’s permit may:

(1) engage in the business of breeding legally possessed breeder deer within the facility for which the permit was issued;

(2) [purchase or otherwise lawfully] take possession of breeder deer transferred from another facility in compliance with the provisions of this chapter[lawfully possessed by another deer breeder];

(3) [sell or] transfer breeder deer that are in the legal possession of the permittee;and

[(4) release breeder deer from a permitted facility into the wild as provided in this subchapter;]

(4)[(5)] except as provided by this subchapter, recapture lawfully possessed breeder deer that have been marked in accordance with Parks and Wildlife Code, §43.3561 that have escaped from a permitted facility.[;]

[(6) temporarily relocate and hold breeder deer in accordance with the applicable provisions of §65.610 of this title (relating to Transfer of Deer); and]

[(7) temporarily relocate and recapture buck breeder deer under the provisions of Subchapter D of this chapter (relating to Deer Management Permit).]

(c) Unless specifically provided otherwise in this subchapter or the conditions of permit, all permit applications, permit renewals, notifications, reporting, and recordkeeping required by this subchapter shall be submitted electronically via the department’s Internet-based deer breeder application.

(d) A deer breeding facility shall contain either white-tailed deer or mule deer, as authorized by the permit.

(e) Except for deer that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, no deer, livestock, exotic livestock, or similar animals may be present in, confined in, or have access to a deer breeding facility other than the deer listed on the reconciled herd inventory for the facility reported to the department.

§65.603. Application and Permit Issuance.

(a) An applicant for an initial deer breeder’s permit shall submit the following to the department:

(1) a completed application on a form supplied by the department;

(2) a letter of endorsement by a person authorized by the department to conduct facility inspections stating that the person[certified wildlife biologist which states that the biologist] has personally conducted an on-site inspection at[of] the facility identified in the application and affirming[affirms] that[:]

[(A)] the facility identified in the application:

(A)[(i)] is constructed as depicted on the diagram submitted with the application;

(B) contains infrastructure appropriate for the humane treatment of deer, including for the provision of adequate food, a continuous supply of water, and ample cover or shelter; [physically exists; and]

(C)[(ii)] is adequate for the lawful conduct of activities governed by this subchapter; [and]

(D)[(B)] has been secured in such a fashion to prevent ingress to and egress from the facility by any deer, livestock, exotic livestock, or similar animals; and

(E) no deer, livestock, exotic livestock, or similar animals are present or confined within the facility[no deer are present within the facility];

(3) a diagram of the physical layout of the facility that clearly defines each distinct enclosure within the facility boundaries and all gates and fences;

(4) the application processing fee specified in Chapter 53, Subchapter A, of this title (relating to Fees); and

(5) any additional information that the department determines is necessary to process the application.

(b) For the purposes of this subchapter, an authorized facility inspector is a person not employed by the department who:

(1) has been awarded a bachelor’s degree or higher in wildlife science, wildlife management, or a related educational field;

(2) has not less than three years of post-graduate experience associated with breeder deer within the five years preceding any facility inspection conducted by the person;

(3) has not, according to department records, failed to maintain a reconciled herd, as defined by §65.90(27) of this title (relating to Definitions), within the five years immediately preceding any inspection conducted for purposes of satisfying the requirements of this subchapter; and

(4) has not been finally convicted of or been assessed an administrative penalty for violation of an offense listed in §65.703 of this title (relating to Proscription of Certain Agents and Surrogates).

(c)[(b)] A deer breeder’s permit may be issued when:

(1) the application and associated materials have been approved by the department; and

(2) the department has received the fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees).

(d)[(c)] An initial deer breeder’s permit shall be a one-year permit valid from the date of issuance until the immediately following July 1. The department may issue a three or five-year deer breeder’s permit if the permit holder has met the requirements of subsection (e)[(d)] of this section for the three-year period immediately prior to application for a three or five-year permit renewal. A three-year or five-year deer breeder permit renewal is valid for the three-year or five-year period specified on the permit.

(e)[(d)] Except as provided in subsection (i)[(h)] of this section, a deer breeder’s one, three, or five-year permit may be renewed prior to the date of expiration, provided that the applicant:

(1) is in substantial compliance with the provisions of this subchapter and Parks and Wildlife Code, Chapter 43, Subchapters L and X;

(2) has submitted a timely application for renewal or is, as determined by the department, making satisfactory progress towards resolution of deficiencies that prevent timely renewal;

(3) has filed the annual report in a timely fashion, as required by §65.608 of this title (relating to Annual Reports and Records);

(4) has paid the permit renewal fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees); and

(5) for a permit renewal of three-years or five-years, meets the criteria for a three-year and five-year permit specified in Parks and Wildlife Code, §43.352.

(f)[(e)] An authorized agent may be added to or deleted from a permit at any time by notifying the department. No person added to a permit under this subsection shall participate in any activity governed by a permit unless that person is listed on an amended permit issued by the department.

(g)[(f)] Except as provided by this subchapter for [release,] transfer[, or transport] of breeder deer, a deer breeder’s permit authorizes the holding of breeder deer only within the physical layout of a facility described by the diagram required by subsection (a)(3) of this section. If a permittee wishes to enlarge, reduce, reconfigure, or otherwise alter [the exterior dimensions of] a facility,[either by enlargement or reconfiguration,] the permittee shall submit to the department an accurate diagram of the altered facility, indicating all changes to the existing facility[, to the department]. It is unlawful to introduce, cause the introduction of, or hold breeder deer anywhere other than within the dimensions of the facility as indicated by an approved[the] diagram on file with the department.

(h)[(g)] In addition to the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G, the department may refuse permit issuance or renewal as provided in Subchapter U of this chapter (relating to Authority to Refuse to Issue or Renew Permit).

(i)[(h)] The department shall conduct all reviews of department decisions to deny issuance or renewal of a permit under this subchapter in compliance with the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U of this chapter.

§65.604. Disease Monitoring. The provisions of Subchapter B, Division 2, of this chapter apply to the possession and movement of deer pursuant to a permit issued under this subchapter.

§65.605. Holding Facility Standards and Care of Deer.

(a) The entire perimeter fence of a facility containing breeder deer, including nursing and medical facilities, shall be no less than seven feet in height, and shall be constructed of department-approved net mesh, chain link or welded wire that will retain breeder deer. An indoor facility is acceptable if it meets the standards described in this section and provides permanent access to an outdoor environment that is sufficient for keeping the breeder deer in captivity.

(b) A permittee shall ensure that deer have access to adequate food, a continuous supply of water, and ample cover or shelter.

(c)[(b)] Immediately upon discovering the escape of breeder deer from a facility, a permittee shall notify the department. The notification shall include a detailed description of the permittee’s intended actions to recapture the escaped deer, including the methods that will be employed to recapture the deer and the dates and times that recapture will be attempted. The permit holder shall notify the department daily of the efforts to capture the escaped deer until the escaped deer are captured.[The permittee shall have ten days from the date of such report to capture only those breeder deer that are marked in accordance with Parks and Wildlife Code, §43.3561. All recaptured breeder deer must be returned to the facility from which the breeder deer escaped.] If after ten days the permittee is unable to capture escaped breeder deer that have been reported in accordance with this subsection, the deer may not be recaptured or held in a deer breeding facility unless specifically authorized in writing by the department for purposes of disease management[the department may grant an additional five-day period for capture efforts to continue, contingent upon the permittee proving to the department’s satisfaction that reasonable efforts were made to effect the capture during the first ten-day period].

(d) If a permit holder is unable to recapture escaped breeder deer reported as provided under subsection (c) of this section and the breeding facility is designated as NMQ at the time of or subsequent to the time of escape under the provisions of Subchapter B, Division 2, of this chapter, the property on which the deer breeding facility is located and any tract of land contiguous to the property under common ownership shall be subject to a department disease-testing plan requiring mandatory CWD testing and reporting.

§65.610. Transfer of Deer.

(a) General [requirement]. No person may possess breeder deer in a trailer or vehicle, or remove or allow removal of breeder deer from a trailer, or accept, introduce, or allow introduction of breeder deer into a permitted facility, [No person mayremove deer from or accept breeder deer into a permitted facility] unless a valid transfer permit has been activated as provided in this section.

(b) Transfer by deer breeder. In accordance with the provisions of Subchapter B, Division 2, of this chapter (concerning Chronic Wasting Disease – Movement of Deer), the[The] holder of a valid deer breeder’s permit may transfer legally possessed breeder deer to:

[(1) to or from another deer breeder as a result of sale, purchase or other arrangement]

[(2) to or from another deer breeder on a temporary basis for breeding purposes;]

[(3)] to or from another person on a temporary basis for nursing purposes; ]

[(4)] to an individual who purchases or otherwise lawfully obtains the deer for purposes of release but does not possess a deer breeder’s permit;]

(1)[(5)] a facility registered with the department for purposes of veterinary treatment; or[to an individual for the purpose of obtaining medical attention, provided the breeder deer do not leave this state;]

[(6) to a facility authorized under Subchapter D of this chapter (relating to Deer Management Permit) to receive buck deer on a temporary basis; or]

(2)[(7)] an[to the holder of a valid] educational display or zoological facility permitted[permit issued] by the department. A transfer under this paragraph is final; breeder deer transferred[donated] to a permitted[the holder of an] educational display or zoological facility[permit] may not be returned to any breeder facility.

(c) White-tailed deer and mule deer may not be transferred to a facility located in a county for which there is no open season for that species.

(d)[(c)] The department will not authorize the transfer of breeder deer to a release site if the department has determined that the transfer will detrimentally affect existing populations or systems.[Transfer by person other than deer breeder. An individual who does not possess a deer breeder’s permit may possess deer under a transfer permit if the individual is transporting breeder deer within the state and the breeder deer were legally obtained from a deer breeder]

(e)[(d)] Release.

[(1) The department may authorize the release of breeder deer for stocking purposes if the department determines that the release of breeder deer will not detrimentally affect existing populations or systems.]

(1)[(2)] Breeder deer lawfully transferred to a registered release site may be held in temporary captivity for any period of time from March 1 through the eleventh day immediately preceding an open deer season to acclimate the breeder deer to habitat conditions at the release site; however, such temporary captivity must be specifically authorized in writing by the department. Not later than 11:59 p.m. on the eleventh day immediately preceding an open deer season, all deer being held in temporary captivity under the provisions of this paragraph shall be released. Release shall consist of the removal of at least 20 feet of the 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.

(2)[(A)] An enclosure used to temporarily detain deer under this paragraph shall be physically separate from any deer breeding facility and the deer being temporarily held shall not be commingled with breeder deer. Deer held in temporary captivity shall not be returned to any deer breeding facility.

(3)[(B)] The department will not authorize the detention of deer under this paragraph during an open hunting season.

(4)[(C)] Deer in temporary captivity under the provisions of this paragraph shall not be hunted while in temporary captivity.

(f)[(e)] Transfer permit.

(1) A transfer permit is valid for 48 consecutive hours from the time of activation.

(2) A transfer permit authorizes the transfer of the breeder deer specifically identified on the transfer permit to one and only one registered facility[receiver].

(3) A transport manifest is a written document that specifically identifies the deer in a means of transport at any given time between departure from the source facility identified on the transfer permit and any destination facility identified on the transfer permit. A person in possession of deer during transport under a transfer permit must physically possess a transport manifest under any of the following conditions:

(A) multiple vehicles are employed to transport deer to only one destination identified in a single transfer permit;

(B) a single vehicle is employed for multiple trips to a single destination identified in a single transport permit; or

(C) a single instance of transport involves stops at multiple destinations.

(4)[(3)] A transfer permit is activated only by:

[(A) notifying the Law Enforcement Communications Center in Austin by phone; or]

(A)[(B)] utilizing the department’s online[Internet-based deer breeder] application; or

(B) notifying the Law Enforcement Communications Center in Austin by phone or email in the event the department’s online application is offline or otherwise unavailable to the general public.

(C) It is an offense for any person to transport a deer under a transfer permit unless the person also possesses a confirmation number issued by the department indicating receipt of the notification for that instance of transport.

(5)[(4)] No person may possess a live breeder deer at any place other than within a permitted facility unless that person also possesses on their person a department-issued transfer permit legibly indicating, at a minimum:

(A) the species, sex, and unique number of each breeder deer in possession;

(B) the facility identification numbers for the source and destination facilities[, or, if applicable, the specific release location for each breeder deer in possession]; and

(6)[(5)] Not later than 48 hours following the completion of the movement of breeder deer[all activities] under a transfer permit, the permit shall be completed and submitted to the department.

(7)[(6)] A deer breeder may transport breeder deer without a transfer permit from a permitted facility to a licensed veterinarian’s medical facility for emergency medical treatment, [veterinarian]provided:

(A) the transport occurs by the most feasible direct route;

(B) the breeder deer are not removed from the means of transportation at any point from the time of departure from the source facility to the time of return to the source facility, including at the place of treatment [between the permitted facility and the veterinary facility]; and

(D) If a breeder deer is removed from the means of transportation to the medical facility and is temporarily housed in a location that may house other susceptible species, then a transfer permit reflecting that transport must be activated and completed and an additional transfer permit must be activated prior to the deer returning to the deer breeding facility.

(E) An eligible-age deer that is transported to a veterinary medical facility under the provisions of this section and dies at any time before being returned to a breeding facility is an eligible mortality for the purposes of the requirements of Subchapter B of this chapter.

(g)[(f)] Marking of vehicles and trailers. No person may possess, transport, or cause the transportation of breeder deer in a trailer or vehicle under the provisions of this subchapter unless the trailer or vehicle exhibits an applicable inscription, as specified in this subsection, on the rear surface of the trailer or vehicle. The inscription shall read from left to right and shall be plainly visible at all times while possessing or transporting breeder deer upon a public roadway. The inscription shall be attached to or painted on the trailer or vehicle in block, capital letters, each of which shall be of no less than six inches in height and three inches in width, in a color that contrasts with the color of the trailer or vehicle. If the person is not a deer breeder, the inscription shall be "TXD". If the person is a deer breeder, the inscription shall be the deer breeder serial number issued to the person.

§65.611. Prohibited Acts.

(a) Deer obtained from the wild under the authority of a permit or letter of authority issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, or R shall not be commingled with deer held in a permitted deer breeding facility.

(b) A person commits an offense if that person places or holds breeder deer in captivity at any place or in any facility for which the herd inventory on file with the department does not account for those breeder deer, except for fawn breeder deer that are not yet required to be reported to the department[on any property other than property for which a deer breeder’s permit, or a permit authorized under other provisions of this title or Parks and Wildlife Code, is issued, except that a permittee may transport and temporarily hold breeder deer at another location for breeding, nursing, or veterinary purposes as provided in this subchapter].

(c) No breeder deer shall be held in a trailer or other vehicle of any type except for the purpose of immediate transportation from one location to another.

(d) No person may possess a breeder deer in a nursing facility beyond 120 days following the deer’s birth.

(e) No person may hold more than one cervid species at any time in a deer breeding facility, or cause or allow the interbreeding by any means of white-tailed deer and mule deer.

(f)[(d)] Possession of a deer breeder’s permit is not a defense to prosecution under any statute prohibiting abuse of animals.

(g)[(e)] No deer breeder shall exceed the number of breeder deer allowable for the permitted facility, as specified by the department on the deer breeder’s permit.

(h)[(f)] This subsection does not apply to breeder deer lawfully obtained prior to June 21, 2005. Except as provided in this subsection, no person may:

(1) possess a deer acquired from an out-of-state source; or

(2) import or attempt to import deer from an out-of-state source.

(i) It is an offense for any person the department has authorized as a facility inspector to submit the checklist or letter of endorsement required by §65.603(a)(2) of this title (relating to Application and Permit Issuance) if the person has not personally conducted an onsite inspection at the facility.

(j) It is an offense for any person to violate or fail to comply with the provisions a disease-testing plan created under the provisions of §65.605(d) of this subsection.

(k) No person may clone or authorize or participate in the cloning of a white-tailed deer or mule deer unless specifically authorized to do so by a permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter C. For the purposes of this subsection, cloning is the creation or attempted creation of a white-tailed or mule deer from a single progenitor cell.

(l) No person may possess deer, livestock, exotic livestock, or similar animals in a deer breeding facility, or allow deer, livestock, exotic livestock, or similar animals to access a deer breeding facility other than:

(1) the deer identified in the reconciled herd inventory for the facility; and

(2) offspring that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L.

§65.612. Disposition of Deer.

(a) Upon termination, suspension, or revocation of a deer breeder’s permit, the permittee shall dispose of all breeder deer covered by the permit.

(b) Breeder deer may be disposed of by:

(1) transfer[sale or donation] to another deer breeder;

(2) transfer[sale or donation] to a holder of a zoological permit issued by the department;

(3) transfer[sale or donation] to the holder of an educational display permit issued by the department; or

(4) transfer to registered release sites[release to the wild] as specifically authorized by the department.

(c) Breeder deer still in possession 30 days following termination, revocation, or suspension of a permit shall be disposed of at the discretion of the department.

(d) Disposition of all breeder deer shall be at the expense of the permittee.

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

The repeal is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; 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 repeal affects Parks and Wildlife Code, Chapter 43, Subchapter E, and Chapter 61.

§65.604. Disease Monitoring.

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. 3
Exhibit B

PERMITS TO TRAP, TRANSPORT, AND TRANSPLANT

GAME ANIMALS AND GAME BIRDS

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§65.101-65.103, 65.107, 65.109, 65.111, and 65.115, concerning Permits to Trap, Transport, and Transplant Game Animals and Game Birds (popularly known as “Triple T” permits). In general, the amendments harmonize the subchapter with the contents of Chapter 65, Subchapter B, concerning Disease Detection and Response, but also make specific substantive and non-substantive changes as noted.

Prior to 2015, the department’s regulatory apparatus for detecting chronic wasting disease (CWD) was contained in this subchapter (Chapter 65, Subchapter T). The testing standards imposed by the rules were considered to be at best minimally efficacious for detecting CWD in captive deer populations and were intended to be the least burdensome regulatory footprint possible in light of the fact that up to that point in time, CWD had not been discovered in captive breeding facilities in Texas. However, with the discoveries of multiple CWD-positive deer in deer breeding facilities in 2015 and 2016, the department adopted rules that imposed more robust testing protocols and movement restrictions. Those rules are contained in Chapter 65, Subchapter B, and supersede the testing rules contained in Chapter 65, Subchapter C.

Additionally, the proposed amendments would function to standardize the department’s approach to the process of administering the Triple T program. The specificity in the current rules apply primarily to deer, which are by far the most commonly transplanted game species in the state. However, the department occasionally is approached with requests concerning other species of game animals and game birds, and the department believes a standardized set of rules for processing all Triple T requests is appropriate, although there will be exceptions as required for specific species because of biological parameters.

The proposed amendment to §65.101, concerning Definitions, would create a definition for “aggregate acreage” in order to define that term for purposes of allowing multiple landowners to collaborate in stocking and restoration efforts, either as the source of or destination for game animals and game birds. The term would be defined as “contiguous tracts of land, to, from, and between which game animals and game birds have complete and unrestricted access, combined by multiple landowners to create an area of land for the purpose of trapping or releasing game animals or game birds under a permit issued under this subchapter.” It is biologically important to require all tracts to be contiguous and for released animals to be capable of moving at will for purposes of maximum biological benefit to the resource and the landscape. For purposes of clarity, the proposed amendment also would define “landowner” as “any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent or manager of an aggregate acreage,” which is necessary to clearly delineate what is meant by that term as it used for purposes of aggregate acreage permit issuance.

The proposed amendment also would create a definition for “georeferenced map.”

A crucial component of the department’s CWD management effort is the monitoring of free-ranging deer that are trapped and translocated and captive-bred deer that are introduced to, transferred among, and released from captive herds under department-issued permits. Such activities occur in virtually every area of the state. Because of the sheer geographic scale involved, the accuracy of geographical information regarding the locations where deer have been transferred by humans is one of the most important components of efficacious disease management efforts. Knowing exactly where transplanted populations were trapped and translocated allows epidemiological investigators to quickly and accurately determine the source and extent of pathways for disease propagation and allows responders to focus resources efficiently and effectively.

The proposed amendment also would insert the term “agricultural products” in the definition of “natural habitat.” The intent of the current rules is to authorize releases of game animals and game birds into places where natural habitat alone is capable of providing nutrition and cover, and the released species are not dependent on the provision of supplemental, artificial, or unnatural food or cover for survival.

The proposed amendment would eliminate the definition of “permit year” and replace it with the more accurate term “trapping year.” The department authorizes trapping activities only at times in the life cycle when those activities would exert the least stress on species being trapped.

The proposed amendment would eliminate the definition of “recruitment,” which is artefact of previous rules and is not employed in the subchapter.

The proposed amendment also would eliminate the definition of “stocking policy” because the statutory authority to issue Triple T permits and the criteria for their issuance exist independently of the agency’s stocking policy, rendering the reference superfluous.

Finally, the proposed amendment would alter the definition of "wildlife stocking plans” to differentiate the content of stocking plans for species other than deer and javelina, which are partially governed by regulatory provisions in Chapter 65, Subchapter A concerning the content of wildlife management plans for those species. There are no other department rules specifying the content of wildlife management plans for species other than deer and javelina.

The proposed amendment to §65.602, concerning Disease Detection Requirements, would eliminate the current contents of the section other than subsection (a)(5) and replace them with a reference to Subchapter B, Division 2 of the chapter. As stated previously in this preamble, the CWD testing and movement requirements for deer are set forth in Chapter 65, Subchapter B, Division 2, which makes the contents of §65.602 superfluous. Current subsection (a)(5) establishes an identification requirement for deer released under a Triple T permit and is being retained as subsection (b).

The proposed amendment to §65.103, concerning Trap, Transport, and Transplant Permit, consists of several actions. Current subsections (a) – (c) and (f) would be eliminated because those subsections are proposed for relocation to §65.107, concerning Permit Application and Processing, where they more properly belong. Current subsections (d), (e), and (g) would be retained and re-designated as subsections (a), (c), and (b), respectively, with the contents of new subsection (c) altered to stipulate that the antler removal must be at a point within the first two inches above each pedicel. The proposed amendment would add new subsection (d) to stipulate that the department will not issue Triple T permits for desert bighorn sheep or migratory game birds. The department is itself stocking desert bighorn sheep in all suitable habitat as part of a decades-long reintroduction program, and federal law prohibits the trapping and transplanting of migratory birds. The proposed amendment also would alter the title of the section to include the shorthand name for the permit (Triple T).

The proposed amendment to §65.107, concerning Permit Application and Processing, would consist of the relocated the provisions of current §65.103(a) – (c) and (f), with modifications as noted. As noted previously in this preamble, one of the goals of the proposed amendments is to standardize the application and issuance process for Triple T permits across all species of game animals and game birds. Proposed new §65.107(a)(1) would accomplish those goals. Current paragraph (1) requires applications to be made on a form prescribed by the department. The department has steadily migrated almost all manual application systems to an online format because the ubiquity of smart phones, tablets, laptops, desktops, and other devices makes it possible to utilize automated processes to enhance administrative efficiencies. The proposed new subsection would therefore require an applicant for a Triple T permit to submit an administratively complete application via an online application. Current §65.103(b) requires an applicant for a Triple T permit to submit trap site information, release site information, the number of deer to be trapped at each trap site, and the number of deer to be released at each release site. The proposed new paragraph would require the same information as part of an administratively complete application, consisting of, at a minimum, the specific trap site information indicated on the application form, including a georeferenced map of the trap site; the specific release site information indicated on the application form, including a georeferenced map of the release site; the number of game animals or game birds to be trapped at each trap site; the number of game animals or game birds to be released at each release site; and any additional habitat, population, and monitoring information or data the department deems necessary to evaluate the prospective activity. The requirement of geospatial data, as discussed earlier in this preamble, is to enhance the department’s ability to conduct contract tracing in the event that epidemiological investigations become necessary. Similarly, the proposed new paragraph broadens the applicability of the current rule language to encompass game animals and game birds, as opposed to being restricted solely to deer.

The proposed amendment to §65.107 would alter current paragraph (2) to remove a superfluous reference to the name of the permit.

The proposed amendment to §65.107 would alter current paragraph (3) would remove a reference to Urban White-tailed Deer Removal Permits and multiple trap and release sites because proposed new paragraph (4) contains provisions governing Triple T permits for aggregate acreages which would replace those provisions.

The proposed amendment to §65.107 would add new paragraph (4) to prescribe the requirements for Triple T permits affecting multiple acreages. The department wishes to provide multiple landowners a way to bundle aggregate acreage to qualify for or maximize game animal and game bird translocation to enhance hunting opportunity. The new provision would allow Triple T permit issuance for an aggregate acreage based on a single application, provided each participating landowner’s name, address, and express consent to join in the aggregate acreage is on file with the department for each tract of land comprising the aggregate acreage; each landowner agrees in writing to the number of game animals or game birds to be trapped or released on the aggregate acreage; and a single landowner has been designated in writing to be the supervisory permittee. Because the Triple T program will be administered via an online application that relates data unique to specific tracts of land enrolled in the program, aggregate acreages must be treated as a single tract for purpose of permit issuance; therefore, a single program participant must be designated to receive the permit and act as the supervisory permittee for Triple T activities.

Proposed new paragraph (6) would consist of the relocated the provisions of current §65.103(b) concerning application deadlines.

The proposed amendment would alter the provisions of current paragraph (5) to eliminate the word “agent.” The proposed new definition of “landowner” includes a landowner’s agent.

The proposed amendment to §65.107 would create new subsection (b) containing the relocated contents of §65.103(c)(1) – (7).

The proposed amendment to §65.109, concerning Issuance of Permit, would stipulate that except as specifically provided otherwise, permits under the subchapter will not be issued without an inspection of the prospective release sites. The department believes that it is prudent to preserve the ability to inspect a prospective release site to ensure that suitable habitat to sustain a population of released game animals or game birds exists and that the release of game animals or game birds will not be detrimental to existing populations or systems.

The proposed amendment also would remove references to the department’s stocking policy, for reasons discussed previously in this preamble, specify that permit applications can be approved by employees authorized to do so, update a citation to regulations governing aerial wildlife management permits, and relocate the provisions of current §65.103(a)(1) and (2) regarding data waiver of inspection for certain properties participating in the department’s Managed Lands Deer Permit Program, the submission of population and harvest data, and provisions regarding compliance with the wildlife management plan (WMP) in effect for the property. The current rule contains an obsolete reference to Level II and Level III MLD (managed lands deer) properties. The rules governing the MLDP were extensively revised in 2015, resulting in the elimination of the Level II and Level III designations, which have been replaced by what is now called the Conservation Option of the MLDP.

The proposed amendment also would clarify that the review of department decisions to deny issuance or renewal of a permit relating to deer are to be conducted in compliance with the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U of the chapter, which is necessary because Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U are specific to department permits regarding deer, and the review of such decisions with respect to all other species would be conducted under the provisions of proposed new subsection (e).

The proposed amendment also would add new subsection (e) to establish provisions governing refusal of issuance of permits under the subchapter (other than permits for deer) to persons on the basis of certain previous criminal behavior involving wildlife law. The proposed new subsection would allow the department to refuse permit issuance to any person who has been finally convicted of, pleaded nolo contendere to, or received deferred adjudication or been assessed an administrative penalty for a violation of: Parks and Wildlife Code, Chapter 43, Subchapters C, E, F, G, H, L, or R; a provision of the Parks and Wildlife Code that is a Class A or B misdemeanor, state jail felony, or felony; Parks and Wildlife Code, §63.002; or the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed new section would allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the new provisions and provides for a review process for agency decisions to refuse permit issuance.

The department has determined that the decision to issue a permit to hold protected live wildlife should take into account an applicant’s history of violations involving the capture and possession of live animals, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources to persons who exhibit a demonstrable disregard for the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of holding wildlife to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

The Lacey Act (16 U.S.C. §§3371-3378) is a federal law that, among other things, prohibits interstate trade in or movement of wildlife, fish, or plants taken, possessed, transported, or sold in violation of state law. Lacey Act prosecutions are normally conducted by the United States Department of Justice in federal courts. Although a Lacey Act conviction or civil penalty is often predicated on a violation of state law, the federal government need only prove that a state law was violated; there is no requirement for there to be a record of conviction in a state jurisdiction. Rather than expending resources and time conducting concurrent state and federal prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred, and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

The denial of permit issuance or renewal as a result of an adjudicative status listed in the proposed amendment would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse permit issuance based on adjudicative status include, but are not limited to: the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations were the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.

The amendment also provides for department review of a decision to refuse permit issuance or renewal. The amendment requires the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The amendment stipulates that a review panel consist of three department managers with appropriate expertise in the activities conducted under the permit in question. The new provision is intended to help ensure that decisions affecting permit issuance and renewal are correct.

The proposed amendment would also prohibit any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication for, or been assessed an administrative penalty for an offense listed in this section from participating in, assisting, or being involved with an activity authorized under this subchapter. The provision is necessary because permit activities are typically conducted by other persons in addition to the person named on the permit. The department believes that the conditions that would prevent a person from obtaining a permit should also apply to persons engaging in permitted activities under a permit.

The proposed amendment to §65.111, concerning Permit Conditions and Period of Validity, would create a new subsection (a) to stipulate that the department may place limitations on the hunting or taking of game animals or game birds at a release site that the department deems necessary to facilitate or enhance the establishment of a sustainable population. The department views the authorization for Triple T permits to be an exercise in ethical wildlife management practices and will not allow the hunting of released animals if the circumstances dictate that the population is not established or sustainable.

The proposed amendment to §65.115, concerning Notification, Recordkeeping, and Reporting Requirements, would require the notification requirements of subsection (a) to be by email. As discussed earlier in this preamble, the department is attempting to modernize formerly manual processes. The proposed amendment would also eliminate a redundancy in subsection (b) regarding the daily log required to be kept by permittees.

2. Fiscal Note.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be better organized regulations that reflect a standardized approach to the issuance of permits authorizing the trapping, transporting, and transplanting of game animals and game birds.

There will be no adverse economic effect on persons required to comply with the rule.

(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 rules govern activities involving 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.

(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.

4. Request for Public Comment.

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, §43.061, which requires the commission to adopt rules for the content of wildlife stocking plans, certification of wildlife trappers, and the trapping, transporting, and transplanting of game animals and game birds under Chapter 43, Subchapter E.

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

6. Rule Text.

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

(1) Aggregate acreage — Contiguous tracts of land, to, from, and between which game animals and game birds have complete and unrestricted access, combined by multiple landowners to create an area of land for the purpose of trapping or releasing game animals or game birds under a permit issued under this subchapter.

(2) [(1)] Amendment — A specific alteration or revision of currently permitted activities, the effect of which does not constitute, as determined by the department, a new trapping, transporting and transplanting operation.

(3) [(2)] Certified Wildlife Trapper — An individual who receives a department-issued permit pursuant to this section.

(4) Georeferenced map — A map image incorporating a system of geographic ground coordinates, such as latitude/longitude or Universal Transverse Mercator (UTM) coordinates.

(5) Landowner — Any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent or manager of an aggregate acreage.

(6) [(3)] Natural Habitat — The type of site where a game animal or game bird normally occurs and existing game populations are not dependent on manufactured feed, agricultural products, [or] feeding devices or cover for sustenance.

(7) [(4)] Nuisance Squirrel — A squirrel that is causing damage to personal property.

(8) [(5)] Overpopulation — A condition where the habitat is being detrimentally affected by high animal densities, or where such condition is imminent.

(9) [(6)] Permittee — Any person authorized by a permit to perform activities governed by this subchapter.

[(7) Permit year — September 1 of any year to August 31 of the following year.]

(10) [(8)] Processing facility — The specific destination of white-tailed deer trapped and transported pursuant to a permit to trap, transport, and process surplus white-tailed deer where deer will be processed for consumption.

(11) [(9)] Qualified individual — An individual who has a wildlife management plan approved by the department.

[(10) Recruitment — The Fall survey estimate of the number of fawns (any deer less than one year of age) on a property.]

(12) [(11)] Release Site — The specific destination of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

[(12) Stocking Policy — The policy governing stocking activities made or authorized by the department as specified in §§52.101 — 52.105, 52.201, 52.202, 52.301 and 52.401 of this title (relating to Stocking Policy).]

(13) Supervisory permittee — A person who supervises the activities of permittees authorized to conduct activities.

(14) Trap Site — The specific source of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

(15) Trapping year — The period of time between September 1 of one year and August 31 of the immediately following year.

(16) [(15)] Wildlife Stocking Plans — The stocking plan for [a]:

(A) a trap site consists of the biological information about the trap site required by the department on the application for a permit under this subchapter; and

(B) a release site consists of:

(i) the biological information about the release site required by the department on the application for a permit under this subchapter; or

(ii) if the prospective activities involve deer or javelina, [is the same as that required for] a wildlife management plan (WMP) prepared under the provisions of §65.25 of this title (relating to Wildlife Management Plan).

§65.102. Disease Detection Requirements.

(a) The provisions of Subchapter B, Division 2, of this chapter apply to the movement of deer pursuant to a permit issued under this subchapter, and

(b) All deer released shall be tattooed in one ear with a department-assigned identification number.

[(a) Except as provided in subsections (b) and (e) of this section, no permits to trap, transport, and transplant white-tailed deer or mule deer shall be issued by the department unless a sample of adult deer from the trap site equivalent to 10% of the number of deer to be transported has been tested for chronic wasting disease by the Texas Veterinary Medical Diagnostic Laboratories.]

[(1) The department will not authorize trapping activities unless the test result for each deer in the minimum required sample is ’not detected.’]

[(2) The department will not issue a permit for any activity involving a trap site from which a ’detected’ result for chronic wasting disease has been obtained.]

[(3) The sample size shall be no more than 40 or less than ten animals.]

[(4) The test results required by this section shall be presented to the department prior to the transport of any deer.]

[(5) All deer released shall be marked in one ear with a department-assigned identification number.]

[(6) A test result is not valid if the sample was collected or tested prior to October 1 of the previous permit year.]

[(7) Except as provided in paragraph (8) of this section, a test result shall not be used more than once to satisfy the requirements of this section.]

[(8) If a permittee traps, transports, and transplants fewer deer than are authorized in a given permit year, that permittee may trap, transport, and transplant the remaining deer the following year from the same trap site without having to provide new samples for testing; however, the person must apply for a new Triple T permit and must re-submit the test results from the previous year. If the application for a new Triple T permit specifies a number of deer greater than the remainder from the previous year, the requirements of paragraphs (1)-(4) of this subsection apply to the additional deer.]

[(b) The provisions of subsection (a) of this section do not apply to a property if:]

[(1) there have been at least 60 CWD-IHC (immunohistochemistry) test results of ’not detected’ received by the department for the property; and]

[(2) there have been no results of ’detected’ received by the department for the property.]

[(c) A property meeting the conditions of subsection (b) of this section continues to qualify for exemption from the provisions of subsection (a) of this section if all samples from the property continue to test ’not detected’ on an annual basis. The minimum requirement for satisfying the provisions of this subsection is one deer per year or at least 3% of the number of deer moved from the property each calendar year, whichever is higher.]

[(d) The provisions of subsection (a) of this section automatically apply to any property that receives deer from a trap site that does not meet the requirements of subsections (b) and (c) of this section.]

[(e) 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.]

[(f) Nothing in this section authorizes the take of deer. The take of deer for the purposes of this section shall be in accordance with applicable laws and regulations.]

[(g) This section does not apply to deer possessed pursuant to a permit to trap, transport, and process white-tailed deer.]

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

[(a) Applications may be approved without an inspection, provided the property has been issued Level II or Level III MLD Permits during the year of the release, the landowner furnishes a minimum of three years of population data and two years of harvest data, and is in compliance with all requirements of the wildlife management plan for the property;]

[(1) the number of deer to be trapped (in addition to the number of deer harvested) does not exceed the population reduction specified in the wildlife management plan for the trap site; and]

[(2) the number of deer to be released does not cause the total population of deer on the release site to exceed the total population size specified in a management plan under the provisions of §65.25 of this title (relating to Wildlife Management Plan (WMP))].

[(b) Applications received by the department between September 1 and November 15 in a calendar year shall be approved or denied within 45 days of receipt. Permits for the current trapping year will not be issued for applications received later than the first business day after January 1. To be processed, an application must contain, at a minimum, the following information as specified on department form PWD 1135A (Trap, Transport, and Transplant Permit Application):]

[(1) trap site information;]

[(2) release site information;]

[(3) the number of deer to be trapped at each trap site; and]

[(4) the number of deer to be released at each release site.]

[(c) The department may deny a permit application if the department determines that:]

[(1) the removal of game animals or game birds from the trap site may be detrimental to existing populations or systems;]

[(2) the removal of game animals or game birds may detrimentally affect the population status on neighboring properties;]

[(3) the release of game animals or game birds at the release site may be detrimental to existing populations or systems;]

[(4) the release site is outside of the suitable range of the game animal or game bird;]

[(5) the applicant has misrepresented information on the application or associated wildlife stocking plan;]

[(6) the activity identified in the permit application does not comply with the provisions of the department’s stocking policy; or]

[(7) the trapping activity would involve deer held under a Deer Management Permit.]

[(d) A buck deer transported under the provisions of this subchapter shall have its antlers removed prior to transport.]

(a) [(e)] The department may establish trapping periods, based on biological criteria, when the trapping, transporting, and transplanting of game animals and game birds under this section by individuals will be permitted.

[(f) The department may, at its discretion, require the applicant to supply additional information concerning the proposed trapping, transporting, and transplanting activity when deemed necessary to carry out the purposes of this subchapter.]

(b) [(g)] Game animals and game birds killed in the process of conducting permitted activities shall count as part of the total number of game animals or game birds authorized by the permit to be trapped.

(c) A buck deer transported under the provisions of this subchapter shall have its antlers removed at a point within the first two inches above each pedicel prior to transport.

(d) The department will not issue a permit under this subchapter for an activity involving desert bighorn sheep or migratory game birds.

§65.107. Permit Application and Processing. [Permit applications.]

(a) Application.

(1) An applicant for a permit under this subchapter shall submit an administratively complete application via an online application designated by the department for that purpose. The department will not process an application that is not administratively complete. An administratively complete application is an application that provides, at a minimum, the following, as indicated on the application form:

(A) the specific trap site information indicated on the application form, including a georeferenced map of the trap site;

(B) the specific release site information indicated on the application form, including a georeferenced map of the release site;

(C) the number of game animals or game birds to be trapped at each trap site;

(D) the number of game animals or game birds to be released at each release site; and

(E) any additional habitat, population, and monitoring information or data the department deems necessary to evaluate the prospective activity.

[(1) Application for permits authorized under this subchapter shall be on a form prescribed by the department.]

(2) A single application [for a Trap, Transport, and Transplant Permit] may specify multiple trap and/or release sites; however, the permit fee prescribed by Chapter 53 of this title (relating to Finance) shall be assessed on a per-release site basis.

(3) [A single application for an Urban White-tailed Deer Removal Permit may specify multiple trap and/or release sites.] A single application for a Trap, Transport, and Process Surplus White-tailed Deer Permit may specify multiple trap sites and/or processing facilities.

(4) A single application may be submitted for an aggregate acreage, provided:

(A) the landowner’s name, address, and express consent to join in the aggregate acreage is on file with the department for each tract of land comprising the aggregate acreage;

(B) each landowner agrees in writing to the number of game animals or game birds to be trapped or released on that aggregate acreage; and

(C) a single landowner has been designated in writing to be the supervisory permittee.

(5) [(4)] A single application may not specify multiple species of game birds and/or game animals.

(6) Applications received by the department between September 1 and November 15 in a calendar year shall be approved or denied within 45 days of receipt. Permits for the current trapping year will not be issued for applications received later than the first business day after January 1.

(7) [(5)] The application must be signed by:

(A) the applicant;

(B) the landowner [or agent] of each trap site [the trap site(s)]; and

(C) the landowner [or agent] of each release site [the release site(s)] or the owner or agent of each [the] processing facility, as applicable [or facilities].

(8) [(6)] The applicant may designate certain persons and/or companies that will be involved in the permitted activities, including direct handling, transport and release of game animals or game birds. In the absence of the permittee, at least one of the named persons and/or companies shall be present during the permitted activities.

(b) The department will not issue a permit if the department determines that:

(1) the removal of game animals or game birds from the trap site may be detrimental to existing populations or systems;

(2) the removal of game animals or game birds from the trap site may detrimentally affect the population status on neighboring properties;

(3) the release of game animals or game birds at the release site may be detrimental to existing populations or systems;

(4) the release site is outside of the suitable range of the game animal or game bird;

(5) the release site does not contain sufficient and/or suitable habitat to sustain a population of released game animals or game birds;

(6) the applicant has misrepresented information on the application or associated wildlife stocking plan; or

(7) the trapping activity would involve deer held under a Deer Management Permit.

§65.109. Issuance of Permit.

(a) Except as may be specifically provided otherwise, permits [Permits] authorized under this subchapter:

(1) will not be issued until the department has conducted an inspection of the prospective release sites, if the department believes inspection is warranted [will be issued, with the exception of permits to trap, transport, and process surplus white-tailed deer, only if the activities identified in the application are determined by the department to be in accordance with the department’s stocking policy];

(2) will be issued only if the application and any associated materials are approved by a Wildlife Division technician or biologist authorized to approve Triple T permit applications [assigned to write wildlife management plans]; and

(3) do not exempt an applicant from the requirements of §§65.150 – 65.162 [§§55.142 — 55.152] of this title (relating to Permits for Aerial Management of Wildlife and Exotic Animals).

(b) A Triple T permit for deer may be approved without inspection of the release sites, provided:

(1) the property is enrolled and in compliance with all applicable provisions of the Conservation Option of the Managed Lands Deer Program under §65.29 of this title (relating to Managed Lands Deer (MLD) Program) during the year of the release;

(2) the landowner furnishes a minimum of three years of population data and two years of harvest data, and is in compliance with all requirements of the WMP for the property;

(3) the number of deer to be trapped (in addition to the number of deer harvested) does not exceed the population reduction specified in the wildlife management plan for the trap site; and

(4) the number of deer to be released does not cause the total population of deer on the release site to exceed the total population size specified in a management plan under the provisions of §65.25 of this title.

(c) [(b)] In addition to the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G, the department may refuse permit issuance or renewal relating to deer as provided in Subchapter U of this chapter (relating to Authority to Refuse to Issue or Renew Permit).

(d) [(c)] The department shall conduct all reviews of department decisions to deny issuance or renewal of a permit relating to deer under this subchapter in compliance with the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U of this chapter.

(e) The department may refuse to issue a permit under this subchapter relating to game birds and any game animal other than deer to 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, F, G, H, L, or R;

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

(A) Class A or B misdemeanor;

(B) state jail felony; or

(C) felony;

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

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

(f) The department may refuse to issue a permit under this subchapter relating to game birds and any game animal other than deer to 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.

(g) An applicant for a permit under this subchapter relating to game birds and any game animal other than deer may request a review of a decision of the department to refuse issuance of a permit.

(1) An applicant seeking review of a decision of the department with respect to the issuance or renewal of a permit must request the review within 10 working days of being notified by the department that the application has been denied.

(2) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

(3) The department shall conduct the review within 30 days of receipt of the request required by paragraph (2) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.

(4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in wildlife management, appointed or approved by the executive director, or designee.

(5) The decision of the review panel is final.

(h) 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 participate, assist, or be involved with an activity authorized under this subchapter.

65.111. Permit Conditions and Period of Validity.

(a) The department may place limitations on the hunting or taking of game animals or game birds at a release site that the department deems necessary to facilitate or enhance the establishment of a sustainable population.

(b) [(a)]A permittee may distribute the cost of permitted activities by entering into cost-sharing agreements with other parties involved, but such cost-sharing arrangements shall not violate the provisions of §65.117 of this title (relating to Prohibited Acts).

(c) [(b] If it is determined by the department that any condition listed on the permit has been violated, the department may suspend the permit after notifying the supervisory permittee that a violation has occurred. All contested cases shall be conducted pursuant to the provisions of Government Code, Chapter 2001.

(d) [(c)] With the exception of permits to trap, transport, and process surplus white-tailed deer where deer at the trap site pose a threat to human health and safety, permits issued pursuant to this subchapter shall expire at the end of the specified trapping period for that species. The maximum period of validity for a permit issued under this subchapter shall not exceed one year.

(e) [(d)] Unattended trapping equipment and devices at trap sites within incorporated areas shall be labeled with the owner’s name, complete address, and telephone number; the date of trap site establishment; and the date the trap site was last visited.

(f) [(e)] Unattended trap sites that may pose a human health and safety hazard shall be clearly marked as such.

§65.115. Notification, Recordkeeping, and Reporting Requirements.

(a) Except as specifically authorized by the department in the provisions of a permit, no [No] person shall trap, transport, or release a game animal or game bird under a permit authorized by this subchapter unless that person has notified the department not less than 12 hours nor more than 48 hours prior to each instance of trapping, transportation, or release. Notification shall be by email to [fax ortelephone contact with] the Law Enforcement Communications Center in Austin, and shall consist of:

(1) in the case of trapping or transport, the supervisory permittee’s name, permit number, and the date(s) that the trapping or transport will occur; and

(2) in the case of release, the date, time, and specific location of the release.

(b) A supervisory permittee shall maintain, [keep current,] and furnish upon request by a department employee acting within the scope of official duties a current daily activity log containing:

(1) the number of game animals or game birds trapped;

(2) the sex of game animals or game birds trapped;

(3) the locations where game animals or game birds were trapped and released or processed;

(4) the dates when trapping occurred;

(5) the trapping methods used;

(6) any mortality incurred during the permitted activity and the disposition of carcasses; and

(7) any completed financial disclosure forms required by subsection (d) of this section.

(c) The supervisory permittee shall file a report on a form provided by the department not later than 30 days following the expiration date of the permit. The report shall include, at a minimum:

(1) the number of game animals or game birds trapped;

(2) the sex of game animals or game birds trapped;

(3) the locations where game animals or game birds were trapped and released or processed;

(4) the dates when trapping occurred;

(5) the trapping methods used;

(6) any mortality incurred during the permitted activity and the disposition of carcasses; and

(7) the completed financial disclosure forms required by subsection (d) of this section.

(d) Upon the completion of trapping activities authorized by a permit under this subchapter, the supervisory permittee shall complete and sign a department-supplied financial disclosure form. The form shall also be signed by the landowner of the trap site (or a full-time employee of the landowner who is authorized to act on the landowner’s behalf) prior to the transport of any game animal or game bird. Upon the release or delivery to a processing facility of the game animals or game birds, the form shall be signed by the owner of the release site or processing facility (or a full-time employee of the landowner who is authorized to act on the landowner’s behalf or an authorized representative of the processing facility). In the instance that a permit authorizes multiple release sites or processing facilities, a separate department-supplied financial disclosure form shall be required for each trap site/release site or processing facility combination. The form shall be supplied by the department to the supervisory permittee and shall be retained as provided by subsection (b) of this section.

(e) All game animals or game birds that die as a result or in the course of activities conducted under a permit issued under authority of this subchapter shall be kept in an edible condition until disposed of by one of the following methods:

(1) documented donation to charitable organizations, public hospitals, orphanages, or indigent persons;

(2) documented transfer or donation to other persons authorized to receive such specimens under a license or permit issued by the department; or

(3) special disposition as prescribed in writing by the department.

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. 3
Exhibit C

DEER MANAGEMENT PERMIT (DMP) RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §65.133, concerning General Provisions. The proposed amendment consists of several changes. The proposed amendment would replace the word “wild” with the term “free-ranging.” Under Parks and Wildlife Code, §43.601, the department may issue a permit for the management of the wild white-tailed deer population on acreage enclosed by a fence capable of retaining white-tailed deer (under reasonable and ordinary circumstances) and capable of preventing entry by a white-tailed deer. Under Parks and Wildlife Code, §1. 011, all wild animals inside the borders of this state are the property of the people of this state. Parks and Wildlife Code, §1.101, defines “wild,” when used in reference to an animal, to mean a species, including each individual of a species, that normally lives in a state of nature and not ordinarily domesticated. The current terminology in §65.133 is imprecise because the distinction it is intended to address is between deer held in captivity and deer that are free-ranging (i.e., capable of coming and going at will). Parks and Wildlife Code, §1.011, is unambiguous: all individual deer, whether free-ranging or captive, are wild and are the property of the people of the state. The proposed amendment would remedy that imprecision. The proposed amendment also would remove a reference to breeder deer as being private property, which is erroneous for the reasons described earlier.

The proposed amendment would also update references to statute and other rules of the department that are referenced in §65.133. The current rule refers to “Scientific Breeder’s Permit.” In 2017, the Texas Legislature amended Parks and Wildlife Code, Chapter 43, Subchapter L to rename that permit the deer breeder’s permit. Similarly, the current rule refers to the department’s Managed Lands Deer Program with language that is no longer accurate, as the rules governing that program have been moved. Therefore, the proposed amendment would introduce the correct references and terminology in subsection (e). The proposed amendment to subsection similarly corrects a reference to a section title.

2. Fiscal Note.

Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

Mr. Lockwood 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 clear, accurate, and unambiguous rules.

There will be no adverse economic effect on persons required to comply with the rule.

(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 regulates 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 business, micro-business, 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; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, §43.603, which provides that a permit issued under Parks and Wildlife Code, Chapter 43, Subchapter R, is subject to conditions established by the commission.

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

6. Rule Text.

§65.133. General Provisions.

(a) No change.

(b) Except as provided in subsection (c) of this section, any deer introduced into a pen containing deer detained under a DMP become free-ranging [wild] deer and must be released according to the provisions of §65.136 of this title (relating to Release).

(c) If approved under the deer management plan, buck deer held under the provisions of Subchapter T of this chapter (relating to Deer Breeder Permits [Scientific Breeder’s Permit]) may be introduced into a pen containing deer detained under a DMP. Such deer [remain private property and] may be recaptured; however, any such deer within the pen when [wild] deer are released under the provisions of §65.136 of this title (relating to Release of Deer) become free-ranging [wild] deer.

(d) (No change.)

(e) The holder of a DMP is entitled to the issuance of Managed Lands Deer Program tags [Permits] subject to the provisions of §65.29 [§65.26] of this title (relating to Managed Lands Deer (MLD) Program[Permits]).

(f) – (g) (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

Commission Agenda Item No. 3
Exhibit D

DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §65.92, concerning CWD Testing. The proposed amendment would require deer breeders to report all mortalities of breeder deer possessed in a breeding facility within 14 days of detection and to submit all CWD test samples to an accredited testing laboratory within 14 days of collection.

Prior to 2015, the department’s regulatory apparatus for detecting chronic wasting disease (CWD) in captive deer was contained in various subchapters regulating various permits that authorize the holding of deer in captivity. The testing standards imposed by the rules were considered to be at best minimally efficacious for detecting CWD in captive deer populations and were intended to be the least burdensome regulatory footprint possible in light of the fact that up to that point in time, CWD had not been discovered in captive breeding facilities in Texas. However, with the discoveries of multiple CWD-positive deer in deer breeding facilities in 2015 and 2016, the department adopted rules that imposed significantly more robust testing protocols and movement restrictions. Those rules are contained in Chapter 65, Subchapter B, and supersede the testing rules contained in Chapter 65, Subchapter T.

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 declines, and human dimensions research suggests that hunters will 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.

It is imperative that deer mortalities within a breeding facility be reported promptly for inventory reconciliation which is necessary for the department to be able to quickly initiate contact tracing in the event of an epidemiological investigation. Prompt submission of CWD samples will aid in early detection of the disease where it exists, which will reduce the probability of CWD being transferred from a CWD-positive deer breeding facility to other deer breeding facilities or release sites. Additionally, prompt submission of CWD samples is recommended by accredited diagnostic testing laboratories. The proposed amendment is intended to provide assurances that reporting and testing protocols are optimal.

2. Fiscal Note.

3. Public Benefit/Cost Note.

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

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

There will be no adverse economic effect on persons required to comply with the rule.

(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 proposed rule would result in 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.

(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.

4. Request for Public Comment.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter.

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

6. Rule Text.

§65.92. CWD Testing.

(a) – (g) (No change.)

(h) Deer breeders shall report all deer mortalities that occur within a breeding facility within 14 days of detection.

(i) All CWD test samples shall be submitted to an accredited testing laboratory within 14 days of collection.

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