Presenter: Clayton Wolf

Commission Agenda Item No. 14
Action
Triple T Regulations - CWD Provisions
August 2004

I. Executive Summary: This item seeks adoption of a proposed amendment to clarify provisions of agency rules governing testing protocols for white-tailed deer moved under permits to trap, transport, and transplant game animals and game birds (Triple T permits).

II. Discussion: Parks and Wildlife Code, Chapter 43, Subchapter E, authorizes 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. In 2003 the Commission adopted regulations to impose testing requirements upon persons seeking to move white-tailed deer under Triple T permits. Since that time, the Department has become aware of several gray areas in the rules that should be clarified in order to prevent confusion and misunderstanding.

II. Recommendation: Staff recommends that the Commission adopt the proposed rule to implement House Bill 2685 by the following motion:

"The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §65.102, concerning Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds, with changes to the proposed text as published in the July 23, 2004, issue of the Texas Register (29 TexReg 7034)."

Attachment – 1

  1. Exhibit A – Proposed Rule

Commission Agenda Item No. 14
Exhibit A

Triple T Rules – Chronic Wasting Disease Provisions
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §65.102, concerning Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds, commonly known as 'Triple T' permits. The proposed amendment would clarify provisions governing testing protocols for chronic wasting disease for persons seeking Triple T permits to move white-tailed deer. In 2003, the department issued 26 Triple T permits authorizing the relocation of deer. Although this number represents an infinitesimally small percentage of all landowners and deer in Texas, it nevertheless is significant from an epidemiological standpoint, since it represents animals that are being moved from place to place in a fashion that would not normally occur in nature, thus increasing the risk of disease transmission far beyond what exists naturally in wild populations of free-ranging deer. Therefore, the proposed amendment is necessary to ensure the integrity of the department's strategy to monitor for chronic wasting disease (CWD) in wild populations of white-tailed deer and minimize the risk of moving the disease if it is present.

The proposed amendment would correct an inaccurate use of terminology. The current rule requires deer to be tested and 'certified 100% negative.' When the rule was adopted, the department was unaware that the terminology used by the Texas Veterinary Medical Diagnostic Laboratory described three possible test results: 'detected,' 'location,' and 'not detected.' Therefore, the amendment would remove the phrase '100% negative' and add a sentence to subsection (a) stating that permits will be issued only if the test result for each deer in a sample is 'not detected.' The proposed amendment also makes it clear that the department will not authorize Triple T activities that involve a trap site where CWD has been detected. The provisions of the department's stocking policy, codified at 31 TAC Chapter 52 , are sufficient authority to deny permit issuance on the basis of impacts to ecosystems; however, the department would prefer to be absolutely certain that the ability to deny a permit on this basis is understood. The proposed amendment also clarifies that samples must be collected and tested within 12 months of the permit year for which a permit is sought. The intent is to prevent the 'stockpiling' of samples, which would negatively impact the functionality of the department's sampling plan by confounding the assumption that test results characterize disease detection efforts through time. In the same vein, the proposed amendment stipulates that no test result be used more than once, with the exception that approved movement could take place in the next year. For instance, if a permittee received authorization to move 100 deer but only moved 50, that person could apply for a Triple T permit the following year, re-submit the test results, and receive authorization to move the remaining 50 deer. However, any deer beyond the number remaining from the previous year would trigger the testing requirements. This portion of the proposed amendment is necessary to acknowledge that from an epidemiological standpoint, a statistically valid sample at a given point in time is sufficient to satisfy the department's disease-detection and risk-assessment protocols for a year. Additionally, on smaller properties it is problematic for individuals to collect a sufficient number of samples within one trapping season and still accomplish the trapping activities.

The current rule was adopted in November 2002, after consultation with the Texas Animal Health Commission and the MLD/TTT Task Force (an external advisory group of landowners and wildlife managers appointed by then-Chairman Lee M. Bass). Under the current rule, the department will not issue any permits to trap, transport and transplant white-tailed deer unless a specified number of adult deer at the trap site have been tested for Chronic Wasting Disease (CWD). CWD is a transmissible spongiform encephalopathy that has been detected in free-ranging deer populations in other states and Canada. Since CWD has not yet been exhaustively studied, the peculiarities of its transmission, infection rate, incubation period, and potential for transmission to other species are not definitively known. What is known is that CWD can be and is passed from deer to deer and is invariably fatal. Although no deer have tested positive for CWD in Texas, the department cannot categorically discount the presence of the disease in the state. Therefore, the department must address any and all threat potentials for the introduction, transmission, or spread of CWD in order to discharge its statutory duty to manage and protect wildlife resources (in this case, deer) in this state. Free ranging white-tailed deer and mule deer have been found to be infected with CWD in Wisconsin, New Mexico, Illinois, South Dakota, Nebraska, Wyoming, Utah, and Colorado and within confined infected elk and white-tailed deer facilities in Oklahoma, Colorado, Wyoming, Montana, South Dakota, Nebraska, Minnesota, and Wisconsin. Each area where the disease has been detected is a significant distance from other known infected herds, which indicates that agents other than natural dispersion are involved (e.g., trapping and transplanting operations). The department has for many years authorized the trapping and transplanting of deer under the Triple T permit program; therefore, any area of the state may be at risk, however slight, which cannot be categorically be ruled out at the present time. Any deer trapped and transplanted within Texas conceivably could have been in contact with a CWD-positive deer prior to being trapped and transplanted and could thus be a vector for introducing the disease to additional areas of the state. The continued transport of deer could potentially further spread the disease. Therefore, the department determined that the practice of trapping and transplanting deer is a potential mechanism for the spread of CWD.

The impact of an outbreak 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 are 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 are 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.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rule is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule as proposed.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit expected as a result of the proposed rule will be the continued and enhanced protection of native deer from communicable diseases, thus ensuring the public of continued enjoyment of the resource and the protection of the state's $2.5 billion per year hunting industry.

(B) There will be no adverse economic cost for small businesses, microbusinesses, or persons required to comply with the rule as proposed, as the proposed amendment does not alter the current cost of compliance.

(C) The department has determined that the rule will not affect local economies; accordingly, no local employment impact statement has been prepared.

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

(E) The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rule.

4. Request for Public Comment.

Comments on the proposed rule 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.

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, §43.061, which requires the commission to adopt rules for the content of wildlife stocking plans, certification of wildlife trappers, and the trapping, transporting, and transplanting of game animals and game birds under the subchapter, and §43.0611, which requires the commission to adopt rules for fees, applications, and activities, including limitations on the times of the activities, relating to permits for trapping, transporting, or transplanting white-tailed deer.

The amendment affects Parks and Wildlife Code, Chapters 43, Subchapter E.

§65.102. Limitation of Applicability.

(a) 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 [and certified 100% negative] for chronic wasting disease by the Texas Veterinary Medical Diagnostic Laboratory.

(1) The department will not authorize trapping activities unless the test result for each deer in the minimum required sample is 'not detected.'

(2) The department will not issue a permit for any activity involving a trap site from which a 'detected' result for chronic wasting disease has been obtained.

(3)[(1)] The sample size shall be no more than 40 or less than ten animals.

(4)[(2)] The test results required by this section shall be presented to the department prior to the transport of any deer.

(5)[(3)] All deer released shall be marked in one ear with a department-assigned identification number.

(6) A test result is not valid if the sample was collected or tested prior to October 1 of the previous permit year.

(7) Except as provided in paragraph (8) of this section, a test result shall not be used more than once to satisfy the requirements of this section.

(8) If a permittee traps, transports, and transplants fewer deer than are authorized in a given permit year, that permittee may trap, transport, and transplant the remaining deer the following year from the same trap site without having to provide new samples for testing; however, the person must apply for a new Triple T permit and must re-submit the test results from the previous year. If the application for a new Triple T permit specifies a number of deer greater than the remainder from the previous year, the requirements of paragraphs (1)-(4) of this subsection apply to the additional deer.

(b) 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.

This agency hereby certifies that amendment has been reviewed by legal counsel and found to be within the agency's authority to adopt.

Issued in Austin, Texas, on


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