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 commission adopts amendments to §§65.101 - 65.104, 65.107, and 65.115, concerning Permits to Trap, Transport, and Transplant Game Animals and Game Birds, without change to the proposed text as published in the April 22, 2005, issue of the Texas Register (30 TexReg 2365).

The amendments are intended, where applicable, to function as part of an 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, Wyoming, and New York, the Canadian provinces of Alberta, Saskatchewan, and Ontario, and is known to have occurred in captive herds in Colorado, Wyoming, Montana, New York, 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 ‘stocking plan.’ A ‘permit year’ is 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 the coordinated regulation of 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 ‘stocking plan’ prescribes 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 acknowledge and 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 the testing regime has progressed, the department has become 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 to test 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 exempts 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 amendment to §65.103, concerning Trap, Transport, and Transplant Permit, consists of several actions. The amendment eliminates the contents of current subsection (a), which are relocated to §65.101, concerning Definitions. The amendment also eliminates the current provisions allowing for 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 amendment also prohibits 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 an adopted 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 amendment to §65.104, concerning Trap, Transport, and Process White-tailed Deer Permit, changes the title of the section in the interests of readability. The amendment also increases 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 amendment to §65.107, concerning Permit Applications and Processing, modifies 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 offering advice 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 vehicle for such matters. The amendment is necessary to provide a mechanism for addressing questions concerning the department’s permit evaluation process and to implement the recommendations of the WTDAC.

The amendment to §65.115, concerning Notification, Recordkeeping, and Reporting Requirements, reduces 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-hour period has passed.

The amendment to §65.101, concerning Definitions, will function by introducing new definitions in order to create constant terms of reference, to prevent ambiguity, and to clarify statutory compliance.

The amendment to §65.102, concerning Limitation of Applicability, will function by creating a maintenance testing regime for properties that have generated a statistical profile indicating that CWD is likely not present on those properties, and by allowing deer to be trapped and transplanted between adjoining pastures under the same ownership. The amendment to §65.103, concerning Trap, Transport, and Transplant Permit, will function by eliminating the so-called ‘inconsequential’ release and by prohibiting the trapping of deer on properties where deer have been released under a Deer Management Permit (DMP) within the same permit year.

The amendment to §65.104, concerning Trap, Transport, and Process White-tailed Deer Permit, will function by increasing from 18 hours to 20 hours the time allowed between trapping and transporting activities.

The amendment to §65.107, concerning Permit Applications and Processing, will function by changing terminology in the department’s review process to prevent potential misunderstandings.

The amendment to §65.115, concerning Notification, Recordkeeping, and Reporting Requirements, will function by reducing the minimum notification time for the commencement of trapping activities from 24 hours to 12 hours.

The department received 12 comments opposing adoption of the proposed amendment to §65.102, concerning Disease Detection Requirements, that allows a property that has had at least 60 ‘not detected’ results and no ‘detected’ results for deer 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. Six commenters articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comments and the agency response are as follows.

One commenter opposed adoption of the proposed amendment and stated that testing should be discontinued, since CWD is not a human health issue and doesn't affect deer population to a significant degree. The department disagrees with the comment and responds that although CWD is not currently believed to be a human health issue, the transmissibility of CWD to humans has not been definitively and categorically ruled out, and that the threat of CWD to Texas is two-fold. Not only is there a potential threat to the health of free-ranging deer populations, there is a threat to the state’s multi-million-dollar hunting industry. By taking a proactive stance on the issue, the department hopes to prevent perception problems that could affect the public’s confidence in the health of wild populations of deer. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that the current levels for disease testing should continue. The department disagrees with the comment and responds that properties that have been repeatedly tested through time and found to be free of CWD are, by the determination of TPWD and the Texas Animal Health Commission, at very low risk of becoming a vector for CWD. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that all high-fenced properties should be tested annually. The department disagrees with the comment and responds that whether a property is high-fenced or not is not a factor with respect to disease transmission. The rules affect only those properties used as a source of deer for other properties, without regard to the type of fencing on the property. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that testing should continue. The department agrees with the comment and responds that testing will continue. No changes were made a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that the regulations are too lax regarding specific high-risk localities. The commenter stated that the origin of the trapped deer should be taken into account, since CWD has been detected in states that border Texas or border bordering states. The commenter suggested that deer trapped from those high-risk localities should be subject to a more stringent set of guidelines and testing. The department disagrees with the comment and responds that the department does not and will not allow deer trapped in other states to be released in Texas. In fact, the department has adopted rules that essentially prohibit the importation of deer. The department further notes that although the predomination of trapping activities in Texas occur in areas of the state that are not near the borders with other states, the department believes that the testing protocols currently in effect are sufficient to detect CWD if it exists in Texas. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that Triple T permits should not exist because it is unethical to fence wildlife belonging to the people of the state. The department disagrees with the comment and responds that fencing is not a consideration in the testing requirements for deer being transplanted or in the process of approving permit applications. The department also notes that under Parks and Wildlife Code, §1.013, the owner or occupant of land cannot be prohibited or restricted from constructing or maintaining a fence of any height on the land owned or occupied, and the existence of a fence does not affect the status of wild animals as property of the people of this state. No changes were made as a result of the comment.

Five commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 16 comments in support of the adoption of the proposed amendment.

The department received eight comments opposing adoption of the proposed amendment to §65.102, concerning Disease Detection Requirements, that exempts 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. Three commenters articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comments and the agency response are as follows.

One commenter opposed adoption of the proposed amendment and stated that all high-fenced properties should be tested annually. The department disagrees with the comment and responds that whether a property is high-fenced or not is not a factor with respect to disease transmission. The rules affect only those properties used to supply deer to other properties, without regard to the type of fencing on the property. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that large ranch sizes in many areas mean that pasture-to-pasture relocations could involve movement of deer 5-20 miles. The commenter also stated that natural dispersion phenomena are positively not "just as likely" as introduced disease phenomena to spread a disease in these areas and further stated that to call testing in this scenario "academic" is ridiculous. The commenter went on to state that at the very least testing should always be required when moving deer. The department disagrees with the comment and responds, respectively, that it is not uncommon for deer in the wild to move from 5-20 miles; therefore, the trapping and movement of deer over such distances on property owned by the same person is not incompatible with natural movement and shouldn’t be restricted. The department also responds that the probability of disease passage as a result of deer being moved from one part of a property to another part of the same property is no different from that possible via natural dispersion (i.e., disease-bearing, free-ranging deer coming into contact via unrestricted movement with unexposed deer). No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that deer should not be treated as domesticated livestock. The department disagrees with the comment and responds that the Triple T program does not treat deer as domestic livestock. The only deer affected by the Triple T permit are wild deer, and their status as wild deer is not affected or altered as a consequence of Triple T activities. No changes were made as a result of the comment.

Five commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 24 comments supporting adoption of the proposed amendment.

The department received eight comments opposing adoption of the proposed amendment to §65.103, concerning Trap, Transport, and Transplant Permit, that eliminates 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). Four commenters articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comments and the agency response are as follows.

One commenter opposed adoption of the proposed amendment and stated that TPWD should not allow relocation of deer except from an urban area to an area where they may be hunted. The department disagrees with the comment and responds that the practice is authorized by the legislature under Parks and Wildlife Code, Chapter 43, Subchapter E, and the department carefully evaluates every permit application to determine that the proposed activity will not violate the department’s stocking policy or otherwise be contraindicated by sound biological management precepts. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that the proposed rule constituted private ownership of a public resource. The department disagrees with the comment and responds that under Parks and Wildlife Code, §1.011, all wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state. The rulemaking does not and cannot alter this provision. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that enforcement is impossible. The department disagrees with the comment and responds that it is confident that enforceability is not a problem. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that inconsequential releases should be allowed but not at a rate of more than once per year per site. The department disagrees with the comment and responds that the reason the inconsequential releases are being eliminated is because accumulated releases (which would include the one-per-year suggestion) have the potential to result in overpopulation and habitat degradation. No changes were made as a result of the comment.

Four commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 23 comments supporting adoption of the proposed amendment.

The department received four comments opposing adoption of the proposed amendment to §65.103, concerning Trap, Transport, and Transplant Permit, that prohibits the trapping of deer on properties where deer have been released under a Deer Management Permit (DMP) within the same permit year. Two commenters articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comments and the agency response are as follows.

Two commenters opposed adoption of the proposed amendment and stated that the rule constituted privatization of a public resource. The department disagrees with the comments and responds that under Parks and Wildlife Code, §1.011, all wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state. The rulemaking does not and cannot alter this provision. No changes were made as a result of the comments.

Two commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 26 comments supporting adoption of the proposed amendment.

The department received eight comments opposing adoption of the proposed amendment to §65.104, concerning Permit to Trap, Transport, and Process White-tailed Deer, that increased from 18 hours to 20 hours the time allowed between trapping and transporting activities. One commenter articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comment and the agency response are as follows.

One commenter opposed adoption of the proposed amendment and stated that TPWD should be the only entity allowed to trap and transplant white-tailed deer. The department disagrees with the comment and responds that the department is confident that the regulations provide sufficient oversight by the department to allow entities other than the department to conduct such activities. No changes were made as a result of the comment.

Seven commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 19 comments supporting adoption of the proposed amendment.

The department received 15 comments opposing adoption of the proposed amendment to §65.104, concerning Permit to Trap, Transport, and Process White-tailed Deer, that reduced 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.

One commenter articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comment and the agency response are as follows.

One commenter opposed adoption of the proposed amendment and stated that the department, by responding to the requests of the regulated community, is catering to them to the detriment of the resource. The department disagrees with the comment and responds that it strives to address matters of concern with respect to the regulated community when it is possible to do so without compromising its statutory duty to conserve, manage, and protect wildlife resources. No changes were made as a result of the comment.

Fourteen commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 17 comments supporting adoption of the proposed amendment.

The amendments are adopted 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 10, 2005.

TRD-200503322

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: August 30, 2005

Proposal publication date: April 22, 2005

For further information, please call: (512) 389-4775

31 TAC §§65.131, 65.133, 65.135, 65.136, 65.138

The Texas Parks and Wildlife Commission adopts amendments to §§65.131, 65.133, 65.135, 65.136, and 65.138, concerning Deer Management Permits. Section 65.138, concerning Violations and Penalties, is adopted with changes to the proposed text as published in the April 22, 2005, issue of the Texas Register (30 TexReg 2369). The amendments to §§65.131, 65.133, 65.135, and 65.136 are adopted without changes and will not be republished.

The change to §65.138 eliminates proposed subsection (d), which would have authorized the department may refuse to issue a permit to a person for a prospective DMP property if the department has reason to believe that the person was acting on behalf of or as a surrogate for another person who was unable to qualify for permit issuance because of a conviction history.

The amendment to §65.131, concerning Deer Management Permit (DMP), establishes a review process for denied permit applications and is necessary to ensure that permit applicants who have been denied permit issuance have the opportunity to have such decisions reviewed.

The amendment to §65.133, concerning General Provisions, allow deer possessed under a "Triple T" permit (Trap, Transport, and Transplant permit) to be released into a DMP pen, provided the property on which the DMP pen is located meets the all requirements for release privileges stipulated in Chapter 65, Subchapter C. The current rules allow DMP holders to temporarily trap and detain wild white-tailed deer on the property for which the permit was issued; the proposed amendment would expand the rule’s application to include deer trapped at locations other than that for which the DMP was issued. The department’s rationale for the change is that since the intent behind the DMP permit is to allow the temporary detention of wild deer, it doesn’t matter if the deer came from the ranch for which the permit was issued or another location, provided that the release of the deer would not be inconsistent with either the recommendations of the wildlife management plan (WMP) for the property or the department’s stocking policy. The amendment will implement the recommendations of the department’s White-tailed Deer Advisory Committee (WTDAC).

The proposed amendment to §65.135, concerning Detention and Marking of Deer, eliminates the requirement that DMP deer be released no later than 10 months following capture. The amendment to §65.136, concerning release would require DMP deer to be released by August 31 of each year. The amendment is necessary primarily because the department seeks to create an absolute time period during which deer may be held under a DMP (effectively defining what is meant by the term ‘temporary’), and because the department seeks to simplify the rules by replacing the current provision (which requires permittees to calculate release dates) with a date certain. The amendment also eliminates the provision requiring DMP deer to be marked with yellow paint and replaces it with an ear-tag requirement. The change is necessary because the use of paint to mark deer proved to be ineffectual, and the WTDAC recommended a return to a more traditional and effective method of marking deer.

The proposed amendment to §65.136, concerning Release, would eliminate the prohibition on the release of deer between September 1 and April 1 and replace it with a requirement that deer be released before August 31 each year. The original requirement was intended to prevent the release of deer immediately prior to deer season and to prevent the trapping of just-released DMP deer under a ‘Triple T’ permit (a permit authorizing the trapping, transporting, and transplanting of deer). The amendment preserves that intent, but simplifies it. The amendment also would require permittees to remove all externally provided food and water from a DMP pen at the time deer are released, ensuring that when the fencing of a pen is removed there is no inducement for the deer within the pen to remain. The amendment will implement a recommendation of the WTDAC.

The proposed amendment to §65.138, concerning Violations and Penalties, would allow the department to refuse permit issuance to an applicant who has been finally convicted of or received deferred adjudication for a violation of the Parks and Wildlife Code within three years prior to application for a permit, and would automatically prohibit the issuance of a DMP permit for a period of three years to any person who has been finally convicted of or received deferred adjudication for a violation of §65.136, which governs the release of DMP deer. The amendment is necessary to introduce a credible deterrent to unscrupulous conduct.

The amendment to §65.131, concerning Deer Management Permit (DMP), will function by providing a mechanism for the review of department decisions concerning the issuance of Deer Management Permits.

The amendment to §65.133, concerning General Provisions, will function by allowing deer possessed under a "Triple T" permit (Trap, Transport, and Transplant permit) to be released into a DMP pen.

The amendment to §65.135, concerning Detention and Marking of Deer, will function by eliminating the requirement that DMP deer be released no later than 10 months following capture, eliminating the provision requiring DMP deer to be marked with yellow paint, and require DMP deer to be marked with an ear tag.

The amendment to §65.136, concerning Release, will function by eliminating the prohibition on the release of deer between September 1 and April 1 and replacing it with a requirement that deer be released before August 31 each year. The amendment also requires permittees to remove all externally provided food and water from a DMP pen at the time deer are released.

The amendment to §65.138, concerning Violations and Penalties, will function by allowing the department to refuse permit issuance to an applicant who has been finally convicted of or received deferred adjudication for a violation of the Parks and Wildlife Code within three years prior to application for a permit, and by automatically prohibiting the issuance of a DMP permit for a period of three years to any person who has been finally convicted of or received deferred adjudication for a violation of §65.136, which governs the release of DMP deer. The amendment is necessary to introduce a credible deterrent to unscrupulous conduct.

The department received 97 comments opposing adoption of the proposed amendment to §65.133, which would allow wild deer to be trapped on one property and then released into a pen containing deer held under a Deer Management Permit on another property. The department received 28 comments articulating a specific reason or reasons for opposing adoption of the proposed amendment. The comments and the agency responses are as follows.

Two commenters opposed adoption of the proposed amendment and stated that the proposed amendment constituted privatization of a public resource. The department disagrees with the comments and responds that under Parks and Wildlife Code, §1.011, all wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state. The rulemaking does not and cannot alter this provision. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that it constituted stealing from the public and giving/selling to wealthy private owners. The department disagrees with the comment and responds that under Parks and Wildlife Code, §1.011, all wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state. The rulemaking does not and cannot alter this provision. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that people should have to buy deer for breeding purposes rather than obtain deer from the wild. The department disagrees with the comment and responds that the scientific breeder permit program exists for that purpose; the deer management permit was specifically authorized by the legislature and implemented by the department to allow the temporary possession of wild deer for breeding purposes. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that people should not be able to capture wild animals without supervision by a Parks and Wildlife representative. The department disagrees with the comment and responds that department oversight is extensive. A deer management permit cannot be obtained unless the department has approved a deer management plan for the property, and under Parks and Wildlife Code, §43.604, an authorized employee of the department may inspect at any time and without warrant the records and acreage for which a permit is issued for the purpose of determining the permit holder's compliance with the management plan. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that the rule was an attempt by trophy hunters to have access to wild genetic deer stock. The department disagrees with the comment and responds that since the current rule allows wild deer on a DMP property to be temporarily detained, it doesn’t matter from a biological perspective if deer from other properties are also allowed to be detained, provided the ultimate release into the DMP property doesn’t cause the population to exceed the carrying capacity of the property. No changes were made as a result of the comments.

Two commenters opposed adoption of the proposed amendment and stated that the rules allow wildlife to be treated as livestock. The department disagrees with the comment and responds that under the provisions of Parks and Wildlife Code, §1.011, all wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state. The rulemaking does not and cannot alter this provision; therefore, deer held under a DMP remain wild animals and do not have the status of livestock.

Two commenters opposed adoption of the proposed amendment and stated that high fencing and deer trapping were ruining deer hunting. The department disagrees with the comment and responds that high fencing and deer trapping (as regulated by the department) are legal under Parks and Wildlife Code. Under Parks and Wildlife Code, §1.013, the owner or occupant of land cannot be prohibited or restricted from constructing or maintaining a fence of any height on the land owned or occupied, and the existence of a fence does not affect the status of wild animals as property of the people of this state. Under Parks and Wildlife Code, Chapter 43, Subchapters E and R, the department is authorized to issue permits that allow deer to be trapped. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that if deer were being taken off a property that is not under a DMP, then the deer on the non-DMP property are therefore being managed by the DMP holder. The commenter stated that DMP activities should be restricted to DMP properties only. The department disagrees with the comment and responds that the department will not authorize trapping activities if it determines that the activities will be detrimental to deer populations or habitat at the trap site or on adjoining properties. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that the proposed amendment was nothing more than a promotion for big fenced hunting camps. The department disagrees with the comment and responds that the amendment is intended to address requests from the regulated community for increased flexibility in the DMP program, which the department has determined can be provided without detriment to the resource. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that he would be put in jail for doing the same thing. The department disagrees with the comment and responds as long as a person possesses a valid DMP, that person may engage in lawful activities authorized by the permit. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that deer should be relocated and released. The department assumes that the commenter is referring to the release of deer into a DMP pen rather than into the wild. The department disagrees and responds that since the current rule allows wild deer on a DMP property to be temporarily detained, it doesn’t matter from a biological perspective if deer from other properties are also allowed to be detained, provided the ultimate release into the DMP property doesn’t cause the population to exceed the carrying capacity of the property. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that since wild deer are the property of the citizens of Texas, capture and releasing to a pen on private property constitutes theft of the resource. The department disagrees with the comments and responds that under Parks and Wildlife Code, §43.601, deer managed under a DMP remain the property of the people of the state, and the holder of the permit is considered to be managing the population on behalf of the state. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that only problem deer and deer in municipal areas should be trapped for management purposes. The department disagrees with the comment and responds that the authorization of trapping activities for purposes of the DMP program is predicated on biological evaluations of impacts to the trap and release properties. The department also notes that there is a separate permit program, the Trap, Transplant, and Process permit program, available to entities interested in controlling population problems. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that since wild deer are the property of the citizens of Texas and managed by TPWD, removing deer from a property to be "penned" for private use is unfair to those who paid taxes to keep them available for public harvest. The department disagrees with the comment and responds that under Parks and Wildlife Code, §43.601, deer managed under a DMP remain the property of the people of the state, and the holder of the permit is considered to be managing the population on behalf of the state. The department additionally notes that DMP deer, once they have been liberated from a DMP pen (under Parks and Wildlife Code, §43.602, the department is prohibited from authorizing the killing of wild deer within a DMP enclosure) are like any other wild deer and subject to lawful hunting at the discretion of the landowner. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that wildlife should not belong to the landowner, wildlife should be free to travel between adjacent properties and that breeding and selling deer should not be permitted. The department disagrees with the comment and responds that wildlife do not belong to landowners (under Parks and Wildlife Code, §1.011, all wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state), the department does not have the statutory authority to regulate fencing (under Parks and Wildlife Code, §1.013, the owner or occupant of land cannot be prohibited or restricted from constructing or maintaining a fence of any height on the land owned or occupied), Parks and Wildlife Code, Chapter 43, Subchapters E and R, authorize the department to issue permits that allow deer to be trapped, and Chapter 43, Subchapter L requires the department to issue a permit to a qualified person to possess white-tailed or mule deer for propagation, management, and scientific purposes. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that wild or un-managed deer should be left alone. The commenter stated that if a person with deer behind a high fence wants different traits in their herd, they should purchase deer from another person holding deer behind a high fence. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapters E and R, the department is authorized to issue permits that allow deer to be trapped and transplanted. The department also notes that under current rules deer may be lawfully purchased from a scientific breeder by anyone for release on any property. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed amendment and stated that there is a difference between a wild trophy deer and a pen-raised stock animal and that the department is promoting the hunting of livestock. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 61, deer are a wildlife resource, and that the term ‘wild’ is defined by Parks and Wildlife Code, §1.011, as "a species, including each individual of a species, that normally lives in a state of nature and is not ordinarily domesticated." No change was made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that the possibility of Chronic Wasting Disease (CWD) transmission by transplanted deer was too great. The department disagrees with the comment and responds that the disease-testing component of the agency’s rules governing the trapping of deer is believed to be a sufficient precaution. No change was made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that deer should not be kept in pens. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapter R, and current rules, the department may issue a permit allowing the trapping and temporary detention of deer for purposes of natural breeding. The proposed amendment does not contemplate elimination of the DMP. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that DMP properties should be required to offer public hunting opportunity. The department disagrees with the comment and responds that the offering of hunting opportunity is and should be at the discretion of the landowner. No changes were made as a result of the comment.

Three commenters opposed adoption of the proposed amendment and stated that wild deer should stay wild and trapping should not be allowed under any circumstances. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapters E and R, the department is authorized to issue permits allowing the trapping of deer. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that it would result in the illegal sale of deer. The department disagrees with the comment and responds that it is confident that illegal acts can be detected. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that it did not help hunters who utilized National Forest lands. The department disagrees with the comment and responds that the DMP program is not applicable to National Forest lands unless they are high-fenced. No changes were made as a result of the comment.

Sixty-nine commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 37 comments supporting adoption of the proposed amendment.

The department received seven comments opposing adoption of the proposed amendment to §65.138, concerning Violations and Penalties, that allows the department to refuse permit issuance to an applicant who has been finally convicted of or received deferred adjudication for a violation of the Parks and Wildlife Code within three years of application for a permit. Four commenters articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comments and the agency responses are as follows.

One commenter stated that the proposed amendment is not a credible deterrent to unscrupulous conduct because it does not include jail time. The commenter also stated that the amendment was part of a process of eroding sportsmen’s rights by passing more and more laws and suggested that the department increase the fee for a resident fishing license to $1,000 to combat unscrupulous conduct. The department disagrees with the comment and responds that the penalty provided by these rules is intended to be an administrative sanction for a violation of the rules governing DMP activities and is prescribed by the legislature in Parks and Wildlife Code, Subchapter R, not by the department. The department also responds that the proposed amendment does not in any way abridge or interfere with anyone’s right to hunt. The department further responds that there is no disincentive to unscrupulous conduct with respect to DMP activities that could be anticipated by increasing the fee for a fishing license. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that deferred adjudication should not be a criterion for refusing permit issuance by the department because the purpose of deferred adjudication is to allow a person to avoid having a conviction record. The department disagrees with the comment and responds that deferred adjudication is an appropriate criterion for permit refusal because a person on deferred adjudication has been found guilty or has pleaded guilty or nolo contendere and must fulfill conditions established by the court. No changes were made as a result of the comment.

One commenter stated people convicted of a violation of the DMP rules should never be issued a Triple T permit again. The department disagrees with the comment and responds that the amendment is restricted to violations of DMP rules only. No changes were made a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that a person who continually violates regulations should be punished by a substantial monetary fine instead of being prohibited from obtaining additional permits. The department disagrees with the comment and responds that the penalties for a violation of the DMP rules are not established by the department but by the legislature under Parks and Wildlife Code, Chapter 43, Subchapter R. No changes were made as a result of the comment.

Three commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 132 comments supporting adoption of the proposed amendment.

The department received nine comments opposing the adoption of the amendment to §65.138, concerning Violations and Penalties, that would automatically prohibit the issuance of a DMP permit for a period of three years to any person who has been finally convicted of or received deferred adjudication for a violation of rules governing the release of deer under a Deer Management Permit. Six commenters articulated a specific reason or reasons for opposing adoption of the proposed amendment. The comments and the agency response are as follows.

Three commenters opposed adoption of the proposed amendment and stated that conviction for more than one violation should result in a lifetime prohibition from obtaining a permit. The department disagrees with the comments and responds that purpose of the proposed amendment is to deter unscrupulous conduct by the application of an appropriate administrative sanction. In the department’s view, the administrative sanction in the amendment is sufficient. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment and stated that department should not refuse to issue a permit to a person convicted of a violation but should increase fines for violations of other regulations. The department disagrees with the comment and responds that the intent of the proposal is to discourage unscrupulous conduct with respect to the DMP program; more stringent penalties for violations of rules unrelated to the DMP program cannot be a deterrent misconduct in DMP activities.

One commenter opposed adoption of the proposed amendment and stated that deferred adjudication should not be a criterion for refusing permit issuance by the department because the purpose of deferred adjudication is to allow a person to avoid having a conviction record. The department disagrees with the comment and responds that deferred adjudication is an appropriate criterion for permit refusal because a person on deferred adjudication has in fact been found guilty or has pleaded guilty or nolo contendere and must fulfill conditions established by the court.

One commenter opposed adoption of the proposed amendment and stated that large fines and jail time were better deterrents. The department disagrees with the comment and responds that the penalties for a violation of the DMP rules are not established by the department but by the legislature under Parks and Wildlife Code, Chapter 43, Subchapter R. No changes were made as a result of the comment.

Three commenters did not elaborate a rationale for opposing adoption of the proposed amendment. No changes were made as a result of the comments.

The department received 134 comments supporting adoption of the proposed amendment.

The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 43, Subchapter R, which provides the commission with authority to establish conditions for permits issued under the subchapter.

§65.138.Violations and Penalties.

(a) A person who violates any provision of this subchapter commits an offense and is subject to the penalties prescribed by Parks and Wildlife Code, Chapter 43, Subchapter R.

(b) The department reserves the right to refuse permit issuance to any person receiving deferred adjudication for or finally convicted of a violation of the Parks and Wildlife Code within the three years immediately preceding an application for a DMP.

(c) A person who receives deferred adjudication for or is finally convicted of a violation involving §65.136 of this title (relating to Release) is prohibited from obtaining a DMP for as period of three years from the date the conviction is obtained or the terms of the deferred adjudication have been satisfied.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 10, 2005.

TRD-200503323

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: August 30, 2005

Proposal publication date: April 22, 2005

For further information, please call: (512) 389-4775