Proposed Amendments to Rules Governing Permits to Trap, Transport, and Transplant Game Animals and Game Birds

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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.

        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 farmed or free-ranging cervid populations.

        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.

        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 rule.

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.

        (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; 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 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

Comment on Proposed Amendments to Rules Governing Permits to Trap, Transport, and Transplant Game Animals and Game Birds
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