Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 65.
WILDLIFE
Subchapter C. PERMITS FOR TRAPPING, TRANSPORTING, AND TRANSPLANTING GAME ANIMALS AND GAME BIRDS
31 TAC §§65.101 - 65.104, 65.107, 65.115
The Texas Parks and Wildlife Department (TPWD or the department)
proposes amendments to §§65.101 - 65.104, 65.107, and 65.115, concerning
Permits for Trapping, Transporting, and Transplanting Game Animals and Game
Birds. The proposed amendments are intended, where applicable, to function
as part of the overall strategy to detect and control Chronic Wasting Disease
(CWD) should it occur in Texas.
The emergence of CWD in both captive and free-ranging deer populations
in other states and Canada is cause for concern due to the potential threat
to wild deer and exotic livestock (i.e. elk) populations in Texas. CWD has
been detected in free-ranging ungulates in Colorado, Illinois, Nebraska, New
Mexico Wisconsin, and Wyoming, the Canadian provinces of Alberta, Saskatchewan,
and Ontario, and is known to have occurred in captive herds in Colorado, Wyoming,
Montana, South Dakota, Oklahoma, Kansas, and Nebraska.
The epidemiological nature of CWD is not well understood and has not been
extensively studied, but CWD is known to be communicable, incurable, and invariably
fatal to the ungulates that contract it. At the current time, there is no
live test for CWD; animals suspected of having CWD must be euthanized in order
to obtain brain tissue for definitive diagnosis.
The Texas Parks and Wildlife Department regulates the trapping, transporting,
and transplanting of deer under what are popularly referred to as the 'Triple
T' regulations. Currently, the rules prohibit translocation activities unless
a specified sample size of deer from the trap site has been tested and returned
with results of 'not detected.'
The current rules, though helpful, do not adequately address a potentially
difficult problem. Although CWD has not been detected in captive or free-ranging
herds in Texas, the disease has not yet been exhaustively studied and the
peculiarities of its transmission, infection rate, incubation period, and
potential for transmission to other species are not definitively known. Therefore
it is possible, if CWD exists in the state but has not been detected, that
infected or exposed deer potentially could be translocated, creating a vector
for dispersal of the disease into additional populations. The risk to the
multi-billion dollar hunting and exotic livestock industries represented by
even one infected animal among a wild population is considerable. The impact
of the discovery of CWD in Texas could be significant. Texas has one of the
most extensive white-tailed deer herds in the United States and the quality
of animals that come from Texas is known throughout the world. Over one-third
of the 4 million white-tailed deer in Texas are found in about 25 per cent
of the geographical area of Texas. Over $600 million is spent by white-tailed
deer hunters in rural communities each year, over half of which is spent in
the Edwards Plateau, Pineywoods, and South Texas regions. Fully one quarter
of this revenue is spent in the Edwards Plateau alone. Therefore, the department
must remain vigilant in the face of potential disease threats to the resource.
The Texas Parks and Wildlife Department has worked closely with the Texas
Animal Health Commission to characterize the threat potential of CWD to native
wildlife and exotic livestock, and to determine the appropriate level of response.
The department believes that vigilance and early detection are crucial to
minimizing the severity of impacts in the event that CWD is discovered in
Texas. The department's efforts (in conjunction with the Texas Animal Health
Commission and the regulated community) to establish, maintain, and follow
protocols for CWD monitoring were analyzed by an ad hoc group of private-practice
veterinarians known as the 'CWD Task Force,' whose recommendations concerning
the future direction of the testing regime were presented to the White-tailed
Deer Advisory Committee (WTDAC) along with those of the TPWD staff. The proposed
rules, where applicable, are a result of this interaction and are intended
to minimize the potential for the translocation of diseased deer.
The amendment to §65.101, concerning Definitions, creates definitions
for the terms 'permit year' and 'wildlife stocking plans.' A 'permit year'
would be defined as the time period from September 1 - August 31 (i.e., the
fiscal year). The change is necessary in order to create a constant term of
reference for purposes of regulating Triple T trapping activities with respect
to trapping activities under a Deer Management Permit. The trapping periods
for those two permits are different; by using a single term to describe a
timeframe for permitted activities, the department avoids lengthier and potentially
confusing regulatory descriptions. The definition of 'wildlife stocking plans'
would prescribe the content of stocking plans at the trap site and at the
release site. The change is necessary because Parks and Wildlife Code, §43.061,
allows permits to be issued 'only if recommended by separate wildlife stocking
plans...for the origin and destination of the game animals or game birds.'
The current rules stipulate that a stocking plan for a release site is the
content of the Wildlife Management Plan prepared for the release site. The
department has always understood that because an application for a Triple
T permit requires pertinent biological data from the trap site, the application
form constituted a stocking plan for the trap site. To be clear, the department
wishes to explicitly establish the application form as the stocking plan for
the trap site.
The amendment to §65.102, concerning Limitation of Applicability,
renames the section 'Disease Detection Requirements' to make the title more
germane in light of the changes introduced by the amendment. The current rule
was first promulgated in 2002 in response to the appearance of CWD in other
states, specifically because CWD was being detected in areas that were a highly
significant distance from other known infected herds, which indicated that
agents other than natural dispersion were likely involved (e.g., trapping
and transplanting operations). As testing has progressed, the department is
confident that certain liberalizations can be effected without diminishing
the department's ability to detect CWD. The proposed amendment would allow
a property that has had at least 60 'not detected' results and no 'detected'
results to be exempt from the requirement of testing a minimum of 10% of deer
to be trapped, provided deer on the property continue to be tested at a rate
of one deer or 3% of the total deer moved per year, whichever is higher. The
amendment is necessary to create a distinction between properties that have
no testing history or a statistically insignificant testing history from those
with statistically valid, non-problematic testing histories. From an epidemiological
standpoint, the probability of detecting disease on a property monitored at
the level contemplated by the rule (60 deer, 1 deer or 3% annually thereafter)
is high and therefore acceptable in terms of risk management scenarios. The
amendment also would exempt properties from testing requirements if the proposed
translocation activities consisted solely of the relocation of deer to or
within a contiguous property owned by the same person. The amendment is necessary
to acknowledge that testing is academic when it comes to pasture-to-pasture
relocations, since natural disease-dispersion phenomena are just as likely
as introduced disease phenomena to occur in such populations.
The proposed amendment to §65.103, concerning Trap, Transport, and
Transplant Permit, consists of several actions. The proposed amendment would
eliminate the contents of current subsection (a), which are relocated to §65.101,
concerning Definitions. The proposed amendment also would eliminate the current
provisions concerning the so-called 'inconsequential release' (releases of
deer without a site inspection at a one-time or cumulative ratio of less than
one deer to 200 acres). The 'inconsequential release' was originally implemented
as a way to reduce workload on staff and to allow land managers with minor
trapping and relocation needs to avoid having to wait for staff to perform
a site inspection. However, the practice has been determined by the department
to be capable of violating the department's stocking policy. The stocking
policy (31 TAC Chapter 52) requires that wildlife be translocated into suitable
natural habitat capable of sustaining the animals. The presumption of the
'inconsequential release' was that one additional deer on 200 acres is superfluous.
In analyzing the impacts of 'inconsequential release,' the department has
determined that repeated releases at the same site or multiple releases in
areas with fragmented habitat can result in deer finding their way to the
only available natural habitat in numbers that the habitat cannot sustain.
Therefore, the amendment is necessary to prevent a conflict with the department's
stocking policy. The WTDAC has concurred and recommends that the practice
be terminated. The proposed amendment also would prohibit the trapping of
deer on properties where deer have been released under a Deer Management Permit
(DMP) within the same permit year. The current rules do not allow for the
release of deer from DMP pens until April 1, after the Triple T season has
ended. The rationale for the prohibition was to prevent the sale of DMP deer
under the guise of Triple T activities. The amendment, in concert with proposed
amendment to the DMP rules (which appear elsewhere in this issue), would allow
deer on a DMP property to be trapped and transplanted only if the operation
occurred prior to any DMP liberations in the same year.
The proposed amendment to §65.104, concerning Trap, Transport, and
Process Surplus White-tailed Deer Permit, would change the title of the section
in the interests of readability. The proposed amendment also would increase
from 18 hours to 20 hours the time allowed between trapping and transporting
activities. The change is necessary to respond to requests from municipalities
using the permit. The current period of 18 hours is considered to be not enough
time in some cases for trapping activities to be concluded before transport
activities are required to begin.
The proposed amendment to §65.107, concerning Permit Applications
and Processing, would modify the current provisions by replacing the word
'appeal' with the word 'review' and by slightly altering the process as it
is currently described. The department believes that 'review' is a more accurate
descriptor of the process contemplated by the rule; the term 'appeal' has
judicial connotations and the department does not wish to give the impression
that the process is a judicial process. The amendment also streamlines the
process by removing the requirement that requestors for review begin the process
by contacting the immediate in-line supervisor of the employee who denied
the issuance of a permit. The department has determined that this is an unnecessary
step because the in-line supervisor will as a matter of practice been consulted
prior to permit denial. Therefore, the review process should be initiated
at the senior manager level. The amendment also removes the provision that
allows a denial by the panel of senior department managers to then be referred
to the Private Lands Advisory Board or the Hunting Advisory Board for determination
of the need for regulatory revision. The Hunting Advisory Board no longer
exists, and the Private Lands Advisory Board is an entity that is not designed
for advising on matters of permit issuance. Instead, the amendment will require
that a summary of all reviews be presented annually to the WTDAC, which is
a more appropriate advisory vehicle for such matters. The amendment is necessary
to implement the recommendations of the WTDAC.
The proposed amendment to §65.115, concerning Notification, Recordkeeping,
and Reporting Requirements, would reduce the minimum notification time for
the commencement of trapping activities from 24 hours to 12 hours. Permittees
have informed the department that in some cases the 24-hour requirement has
led to the disruption of trapping activities because deer move out of the
trapping area before the required 24 hours has passed.
Robert Macdonald, Regulations Coordinator, has determined that for each
of the first five years that the amendments as proposed are in effect, there
will be no fiscal implications to state and local governments as a result
of enforcing or administering the amended sections.
Mr. Macdonald also has determined that for each of the first five years
the amendments as proposed are in effect, the public benefit anticipated as
a result of enforcing or administering the amendments as proposed will be
the availability of flexible management opportunities for landowners and land
managers, which will biologically benefit the resources the department is
charged with protecting and, ultimately, their enjoyment by the people of
this state.
There will be no adverse economic effect on small businesses, micro-businesses,
or persons required to comply with the amendments as proposed. The proposed
amendments do not impose any fees in addition to those already required, and
compliance with the amendments as proposed would not require any additional
investment in equipment, infrastructure, or recordkeeping materials or systems.
The department has not drafted a local employment impact statement under
the Administrative Procedures Act, §2001.022, as the agency has determined
that the amendments as proposed will not impact local economies.
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 amendments.
Comments on the proposed amendments may be submitted to Robert Macdonald,
Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas
78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).
The amendments are proposed under the authority of Parks and
Wildlife Code, Chapter 43, Subchapter E, 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.
The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapter
E.
§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) - (6)
(No change.)
(7)
Permit year--September 1 of any year to
August 31 of the following year.
(8)
[
(9)
[
(10)
[
(11)
[
(12)
[
(13)
[
(14)
Wildlife Stocking Plans--The stocking
plan for 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)
release site is the same as that required for a wildlife
management plan under the provisions of §65.25 of this title (relating
to Wildlife Management Plan).
§65.102. Disease Detection Requirements [
(a)
Except as provided in subsections (b) and (e) of this
section
[
(1) - (8)
(No change.)
(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)
[
(g)
[
§65.103.Trap, Transport, and Transplant Permit.
(a)
[
[(1)
the release will not exceed a ratio of
one white-tailed deer per 200 acres at the release site; however, when the
accumulated releases on a tract result in a ratio of one deer to 200 acres
(counting released deer only), no further releases shall take place unless
a site inspection has been performed by the department; or]
[
(1)
[
(2)
[
(b) - (g)
(No change.)
(h)
No permit shall be issued for any trapping
activity on a property or portion of a property if deer held under a Deer
Management Permit have been released on the property or portion of the property
in the same permit year.
§65.104. Permit to Trap, Transport, and Process Surplus White-tailed Deer [
(a) - (c)
(No change.)
(d)
The permittee is responsible for establishing an acceptable
schedule for delivery of deer with the processing facility. However, transport
of live, trapped deer shall begin within
20
[
(e) - (f)
(No change.)
§65.107.Permit Applications and Processing.
(a)
(No change.)
(b)
Review
[
(1)
An applicant seeking
review of a decision
[
(2)
The department shall conduct the review
and notify the applicant of the results within 10 working days of receiving
a request for review.
(3)
[
(A)
the Director of the Wildlife Division;
(B)
the Regional Director and District Leader with jurisdiction;
[
(C)
[
(D)
the White-tailed Deer or Mule Deer program
leader, as appropriate.
(4)
[
(5)
The department shall report on an annual
basis to the White-tailed Deer Advisory Committee the number and disposition
of all reviews under this subsection.
(c)
(No change.)
§65.115.Notification, Recordkeeping, and Reporting Requirements.
(a)
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
[
(1) - (2)
(No change.)
(b) - (e)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 11, 2005.
TRD-200501489
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 22, 2005
For further information, please call: (512) 389-4775
(7)
] 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.
(8)
] Recruitment--The Fall survey
estimate of the number of fawns (any deer less than one year of age) on a
property.
(9)
] Release Site--The specific
destination of game animals or game birds to be relocated pursuant to a permit
issued under this subchapter.
(10)
] 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).
(11)
] Supervisory permittee--A
person who supervises the activities of permittees authorized to conduct activities.
(12)
] Trap Site--The specific source
of game animals or game birds to be relocated pursuant to a permit issued
under this subchapter.
Limitation of Applicability ].
Until this section is repealed
], 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.
(b)
] 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.
(c)
] This section does not apply
to deer possessed pursuant to a permit to trap, transport, and process white-tailed
deer.
For the purposes of this subchapter, the content
of a wildlife stocking plan for a release site shall be the same as that required
for a wildlife management plan under the provisions of §65.25 of this
title (relating to Wildlife Management Plan).
] Applications may be approved
without an inspection, provided[
:
]
(2)
]
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; and
(A)
] 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
(B)
] 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.
Permit ].
18
] hours
of trapping.
Appeals
]. An applicant for
a permit under this subchapter may
request a review of a decision
[
appeal the decisions
] of the department
to deny issuance of the
[
concerning the stipulations of a
] permit. [
All appeals
involving the provisions of paragraphs (1) and (2) of this subsection shall
be resolved within 10 working days of notification of the department by the
person making the appeal.
]
to appeal the decisions
] of the department with respect to permit issuance
under this subchapter shall first contact the
department within 10 working
days of being notified by the department of permit denial
[
immediate
in-line supervisor of the TPW employee responsible for authorizing the permitted
activities
].
(2)
]
The request for review
shall be presented to a review panel
[
If the determination of the
immediate in-line supervisor is unsatisfactory to the applicant, the applicant
is entitled to have the appeal presented to an appeals panel. The decision
of the appeals panel is final
]. The
review
[
appeals
] panel shall consist of the following:
and
]
the White-tailed Deer Program Leader and
] the
Big Game Program Director
; and
[
.
]
(3)
]
The decision of the review
panel is final.
[
If the determination of the panel is unsatisfactory
to the applicant, the applicant is entitled to have the appeal presented to
the Private Lands Advisory Board and the Hunting Advisory Board for the purpose
of determining if regulatory revision is appropriate.
]
24
] hours
nor more than 48 hours prior to each instance of trapping, transportation,
or release. Notification shall be by fax or telephone contact with the Law
Enforcement Communications Center in Austin, and shall consist of:
Subchapter D. DEER MANAGEMENT PERMIT (DMP)