Proposed New Rule for Proof of Sex for Deer

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CHRONIC WASTING DISEASE MANAGEMENT

PROOF OF SEX REQUIREMENTS FOR DEER

PROPOSAL PREAMBLE 

1. Introduction.

        The Texas Parks and Wildlife Department proposes new §65.4, concerning Proof of Sex for Deer. The proposed new section would replace the provisions of current §65.10(e) with respect to deer for the upcoming hunting season. Section 65.10 cannot be amended at the present time because of pending rule action relating to the implementation of rules regarding digital hunting and fishing licenses. The department will comport the provisions of the two sections at a future date.

        The proposed new section is in response to the threat to free-ranging deer populations posed by chronic wasting disease (CWD). CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as 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 commonly known as "Mad Cow Disease"), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. CWD can be transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). CWD has been detected in multiple locations in Texas, primarily in deer breeding facilities but also in free-ranging populations in several counties. The department, along with the Texas Animal Health Commission, has been engaged in a long-term battle to detect and contain CWD. If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant.

        The movement, and ultimately, the improper disposal of carcasses and carcass parts, particularly skulls, brains, and spinal cords, increases the risk of spreading CWD. Under current rule, proof-of-sex for deer is the head of the deer, which must accompany the carcass until a final destination is reached. The proposed new rule would provide an alternative to the current rules regarding proof of sex for female deer by allowing certain gender-related anatomical parts to accompany the carcass in lieu of the head. This would provide hunters an option to leave the head of a female deer at the site of harvest to reduce risk for the potential spread of CWD from that site.

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 rule will be the protection of indigenous wildlife resources for public use and enjoyment.

        (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 impacts to small businesses, micro-businesses, or rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact“ to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rule will not result in direct adverse impacts on small businesses, micro-businesses, or rural communities because the proposed rule regulates various aspects of recreational license privileges that allow individual persons to pursue and harvest public wildlife resources in this state and therefore does not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) 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.

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

        (E) 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.

        (F) 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:

        (1) neither create nor eliminate a government program;

        (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

        (3)  not result in a need for additional General Revenue funding;

        (4) not affect the amount of any fee;

        (5) not create a new regulation (but will augment an existing regulations);

        (6) not repeal, expand, or limit a regulation;

        (7) neither increase nor decrease the number of individuals subject to regulation; and

        (8) 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 new section is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

        The proposed new rule affects Parks and Wildlife Code, Chapter 61.

6. Rule Text.

        §65.4. Proof of Sex for Deer.

                (a) Until repealed, the provisions of this section replace the provisions of §65.10(e) of this title (relating to Possession of Wildlife Resources) that apply to deer.

                (b) All other provisions of §65.10 continue in force and effect.

                (c) Proof of sex for deer must remain with the carcass until tagging requirements cease.

                (d) Proof of sex for deer consists of:

                         (1) buck: the head, with antlers still attached; and

                         (2) female antlerless (“doe”):

                                 (A) the head; or

                                 (B) the mammary organ (udder) or vulva, and tail; and

                         (3) male antlerless (“nubbin,” “button,” “shed-antlered” buck): the head.

        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