31 TAC §65.103
The Texas Parks and Wildlife Commission adopts an
amendment to §65.103, concerning Permits for Trapping, Transporting,
and Transplanting Game Animals and Game Birds (popularly known as
"Triple T" permits), with changes to the proposed text as published
in the December 19, 2008, issue of the Texas
Register (33 TexReg 10295).
The rule as proposed would have established a deadline of January
1 for the submission of Triple T permit applications. The change eliminates
the "date certain" of January 1 and instead requires applications
to be submitted by the first business day following January 1. The
change is necessary because January 1 is a holiday and sometimes falls
during the weekend, which makes the January 1 deadline problematic.
Triple T permits may be issued only after a department biologist
and/or technician has approved an applicant's wildlife management
plan and approved the prospective trap and release sites following
on-site habitat inspections. The current rule does not specify a deadline
for permit applications, which has created a problematic situation
with respect to workforce logistics and scheduling. Out of 77 Triple
T permit applications received during the 2007-08 permit year, 51
(which involved over 120 separate release sites) were received after
January 1. This has created conflict with existing job duties of department
field personnel during the winter months, when such personnel are
typically involved in site inspections for Managed Lands Deer Permits
issuance, technical guidance requests, locker plant checks, research,
and other activities. Therefore, the department finds it necessary
to create a firm deadline for the submission of provisionally complete
Triple T permit applications.
The current rules guarantee that applications for Triple T permits
received by the department between September 1 and November 15 will
be approved or denied within 45 days and would create a final deadline
of the first business day after January 1 for applications seeking
permit approval in the current permit year. The amendment also requires
applicants to submit provisionally complete applications by the deadlines,
i.e., application containing only that information necessary to allow
field staff to begin planning and assessing each application, such
as trap site information, release sit information, and the number
of deer to be trapped and/or released. Other application materials,
such as Chronic Wasting Disease test results, could still be submitted
at a later date.
The rule will function by establishing a deadline for the submission
of provisionally complete Triple T permit applications.
The department received 13 comments opposing adoption of the rule
as proposed. Of the 13 comments, nine articulated a specific reason
or reasons for opposing adoption of the proposed amendment. The comments
and the agency response to each are as follows.
One commenter opposed adoption and stated that wildlife is owned
by the people and should not be trapped, transported, or fenced in
by high fences for the purpose of selling hunts. The department agrees
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. Under Parks and Wildlife
Code, §43.061, the department may allow "trapping, transporting,
and transplanting game animals or game birds from the wild to allow
adjustments in game populations for better wildlife management." The
department is committed to working with landowners and land managers
to provide the best possible management options for game animals and
game birds and therefore issues permits for this purpose; however,
permits are issued only after a biological determination (including,
but not limited to) of the following: that the removal of game animals
or game birds from the trap site is not detrimental to existing populations
or systems; that the removal of game animals or game birds is not
detrimental to the population status on neighboring properties; that
the release of game animals or game birds is not detrimental to existing
populations or systems; and that the release site is not outside of
the suitable range of the game animal or game bird. 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.
One commenter opposed adoption and stated that the department is
micromanaging applicants whose only desire is to improve the quality
of their deer herd. The commenter also stated that the department
should prove the need for the rule instead of "ramming it down ranchers'
throats." The department disagrees with the comment and responds that
wildlife does not belong to individual landowners, but to the people
of the state, and that the department is the state agency responsible
for managing and protecting wildlife. Although the department strives
to promulgate rules that are user-friendly and earnestly attempts
to prevent unnecessary administrative burdens, the primary objective
of the rules is to ensure that the department is able to manage its
workload in a manner that enables it to provide necessary services
to its constituents. The department also notes that it does not believe
that the current rules are coercive. The decision to engage in Triple
T activities is voluntary; however, if a person seeks to trap, transport,
and transplant game animals and game birds, that person must do so
according to the rules, which, as noted earlier, are intended to allow
such activities to take place with the minimum administrative complexity
possible while protecting a public resource. No changes were made
as a result of the comment.
One commenter opposed adoption and stated that the deadline is
"completely unnecessary and unworkable." The commenter stated that
it is impossible for anyone to know how many animals will be trapped
and how many will survive transport and transplantation, and stated
that the department should ask for estimates and require the permit
to be obtained before actual trapping begins. The department disagrees
with the comment and responds that the deadline as adopted is necessary
in order to more efficiently allocate finite manpower resources to
the variety of duties and obligations incurred by the department.
The department also disagrees that it is impossible to know the number
of animals to be trapped, since that number must be specified prior
to permit issuance and must be consistent with management plans at
both the trap site and the release site. Current rules clearly state
that mortalities count against the total number of animals or birds
to be trapped and released, which makes it incumbent upon the permittee
to conduct activities in such a fashion as to reduce the potential
for inadvertent mortalities. The department also responds that applicants
are required to specify a number of birds or animals to be trapped
because estimates would be inadequate by their very nature. By authorizing
a specific number of animals or birds to be trapped, the department
intends to impress upon the permittee the need to be as accurate and
efficient as possible in management activities involving a public
resource. No changes were made as a result of the comment.
One commenter opposed adoption and stated that deer trapping should
not be allowed. Under Parks and Wildlife Code, §43.061, the department
may allow "trapping, transporting, and transplanting game animals
or game birds from the wild to allow adjustments in game populations
for better wildlife management." The department issues permits for
this purpose; however, permits are issued only after a biological
determination that includes, but is not limited to the following:
that the removal of game animals or game birds from the trap site
is not detrimental to existing populations or systems; that the removal
of game animals or game birds is not detrimental to the population
status on neighboring properties; that the release of game animals
or game birds is not detrimental to existing populations or systems;
and that the release site is not outside of the suitable range of
the game animal or game bird. No changes were made as a result of
the comment.
One commenter opposed adoption and stated that the January 1 deadline
won't work because most ranches do not conduct census activities until
late January. The department disagrees with the comment and responds
that mid-winter surveys are not crucial to the data requirements for
the issuance of Triple T permits. The department considers that a
habitat inspection, along with reasonable data, such as harvest and
population data from current and previous years, is sufficient to
determine whether or not a Triple T permit should be issued. No changes
were made as a result of the comment.
One commenter opposed adoption and stated that the current system
is working just fine and that there are ranches that get denied because
staff can't get to the release sites for inspections. The department
disagrees with the comment and responds that the current rule is problematic
because it is open-ended. Although the current rule guarantees permit
issuance or denial within 45 days for applications that are submitted
between September 1 and November 15, it does not specify a deadline
for submissions, which causes logistical problems with respect to
other duties for field staff. The rule as adopted provides that permits
will not be issued for applications received later than the first
business day after January 1. This means that a person who desires
Triple T permits has four months (September, October, November, and
December) to submit an application if that person would like to receive
Triple T permits in the current permit year. The department believes
that this is a sufficient time period. No changes were made as a result
of the comment.
One commenter opposed adoption and stated that the January 1 deadline
will limit landowners' ability to apply for permits, since the hunting
season is still open and they will not have had time to develop plans
for the upcoming year. The department disagrees with the comment and
responds that a habitat inspection, along with harvest and population
data from current and previous years, is sufficient to determine whether
or not a Triple T permit should be issued. No changes were made as
a result of the comment.
One commenter opposed adoption and stated that refusal to issue
permits will impact local economies, contrary to the department's
statement in the proposal preamble, because local people are employed
to help in trapping activities and money generated at all levels goes
into the local economy and directly or indirectly benefits all license
holders. The commenter also stated that Triple T permits are important
to many ranch managers and that the rules should encourage and facilitate
more participation rather than to inhibit it. The commenter stated
that the proposed rule makes department employees' jobs easier by
limiting the amount of service they need to give. The department disagrees
with the comment and responds that the overall employment impact of
Triple T permit activities on local economies is probably extremely
small, either as an absolute value or in comparison to other economic
activities in any given county. Under Government Code, §2001.022,
a state agency is required to determine whether a rule may affect
a local economy. The department considered that Triple T activities
are seasonal and therefore very few if any people are employed full-time
in the discharge of Triple T permit activities, that Triple T activities
are not labor intensive, and that the financial disclosure reporting
required of permittees under §65.115(d) indicates the economic
activity generated by Triple T activities, even on a microeconomic
scale is not significant. Additionally, the imposition of the deadline
does not prohibit, frustrate, or curtail Triple T permit activities;
it serves only to require that applications be submitted by a date
certain. The department also responds that the rule as adopted makes
the department more efficient in the discharge of its duties, which
benefits the resources and people the department serves. No changes
were made as a result of the comment.
One commenter opposed adoption and stated that the January 1 deadline
would prevent people from using the Triple T program because most
users are professional people from large metropolitan areas who go
to their ranches in the winter and may not realize that by the time
they decide how many deer need to be removed or released, the deadline
for applying for a Triple T permit will have passed. The commenter
stated that the deadline is unrealistic because it occurs during hunting
season. The commenter recommended a February 1 deadline and a fee
reduction for applicants who submit their applications earlier. The
department disagrees with the commenter and responds that a habitat
inspection, along with harvest and population data from the current
and previous years, is sufficient to determine whether or not a Triple
T permit should be issued. The department also comments that a February
1 deadline would defeat the purpose of the rule. No changes were made
as a result of the comment.
One commenter opposed adoption and stated that the deadline for
submission of Triple T applications should be February 1. The commenter
stated that most landowners don't start surveying deer herds until
January and don't know what they have. The commenter also stated that
there will be a perception that the department is making a bureaucratic
decision that is very staff oriented and really not a user-oriented
decision. The department disagrees with the commenter and responds
that a habitat inspection, along with harvest and population data
from current and previous years, is sufficient to determine whether
or not a Triple T permit should be issued. The department also comments
that a February 1 deadline would defeat the purpose of the rule. The
department also responds that the rule is necessary in order to allow
department personnel to better serve all constituents, which makes
it by definition a user-oriented decision. No changes were made as
a result of the comment.
The department received 12 comments in support of adoption of the
proposed rule.
The Texas Deer Association and the Texas Wildlife Association commented
against adoption of the proposed rule.
The amendment is adopted under Parks and Wildlife Code, §43.061,
which requires the commission to adopt rules for the trapping, transporting,
and transplanting of game animals and game birds.
§65.103.Trap, Transport, and Transplant Permit.
(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.
(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.
(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.
(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.
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 June 10, 2009.
TRD-200902323
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: June 30, 2009
Proposal publication date: December 19, 2008
For further information, please call: (512) 389-4775