Proposed Amendments to Rules Governing Deer Management Permits

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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.

        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 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

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