Regulations Committee

Wednesday, 9:00am, Nov. 2, 2005

Commission Hearing Room
4200 Smith School Road
Austin, TX 78744
Item No. Subject Public Hearing Agenda Item No.
  Approve previous Committee Meeting minutes.  
  Chairman's Charges for FY06 (Oral Presentation) Committee Only
1. 2006-2007 Statewide Hunting and Fishing Proclamation Preview
Staff: Larry McKinney/Ken Kurzawski/Mike Berger
Committee Only
2. Proposed Big Game Regulations - Permission to Publish
  • Consolidation of Deer Permit Violation Provisions
  • Changes to Scientific Breeder Regulations

Staff: Clayton Wolf
Committee Only
3. Hunter Education Plan
  • Hunter Education Student Fee Increase - Permission to Publish
Staff: Steve Hall
Committee Only
4. Seagrass Protection in Redfish Bay Scientific Area
Staff: Larry McKinney
14
5. Chapter 58 Oysters and Shrimp - Proposed Rules and Rule Review
Staff: Jerry Cooke
16
6. Texas Parks and Wildlife Commission Policy Amendments
Staff: Ann Bright
10

Committee Agenda Item No. 1
Presenter: Larry McKinney
Ken Kurzawski
Mike Berger

Regulations Committee
2006-2007 Statewide Hunting and Fishing Proclamation
Preview
November 2005

I. Executive Summary: This item apprises the committee of potential changes to the Statewide Hunting and Fishing Proclamation for the 2006-2007 season.

II. Discussion: Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61. The potential changes are based upon statutory requirements and Commission policy, including scientific investigation and required findings of fact where applicable. The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Attachments - 1

  1. Exhibit A - Potential Changes to the Statewide Hunting and Fishing Proclamation

Commission Agenda Item No. 1
Exhibit A

Potential Wildlife Regulation Proposals

Alligator
Include regulations governing the recreational take of alligator in the Statewide Hunting and Fishing Proclamation.
White-tailed Deer
  1. Implementation of antler-restriction rules in selected additional counties.
  2. Standardize harvest regulations in Upton County.
Turkey
Create a ‘managed lands’ program for turkey.
Pheasant
Create a ‘managed lands’ program for pheasant.
Quail
Create a ‘managed lands’ program for quail.

Potential Freshwater Fishing Regulation Changes

Lake Colorado City (Mitchell County)
Change harvest regulations for red drum from the current 20-inch minimum length limit and three fish daily bag limit to no length and no bag limit.
Mountain Creek Lake (Dallas County)
All fish species in Mountain Creek Lake are managed under statewide length and bag limits. The regulations would be changed to catch-and-release only for all species.
Marine Creek Reservoir (Tarrant County)
Current harvest regulations for largemouth bass consist of statewide 14-inch minimum length limit with a five fish daily bag limit. The regulation would be changed to an 18-inch minimum length limit. The five fish daily bag would be retained.
Statewide baitfish exceptions
Add Kinney County to current list of bait fish exceptions. Current regulations are: "In Brewster, Crane, Crockett, Culberson, Ector, El Paso, Jeff Davis, Hudspeth, Loving, Pecos, Presidio, Reeves, Terrell, Upton, Val Verde, Ward, and Winkler counties, the only fishes that may be used or possessed for bait while fishing are common carp, fathead minnows, gizzard and threadfin shad, golden shiners, goldfish, Mexican tetra, Rio Grande cichlid, silversides (Atherinidae family), and sunfish (Lepomis)."

Potential Coastal Fishing Regulation Proposals

Prohibit the take of largetooth sawfish (Pristis perotteti). National Marine Fisheries and the U. S. Fish and Wildlife Service have listed the smalltooth sawfish as endangered and, therefore, it is now endangered in Texas under PWC Chapter 68. Because of the extreme difficulty that lay-fishermen have in distinguishing the smalltooth sawfish from the largetooth sawfish, protection of both is believed to be the only way to protect the listed species.

Remove the requirement for the redfish tag. Recognizing that there are good business reasons to doing away with the redfish tag, we will scope 2 proposals to replace the redfish tag and insure the continued protection of redfish:

  1. one redfish larger than 28 inches may be taken as part of the 3 fish daily bag limit.
  2. one redfish larger than 28 inches may be taken in addition to the 3 fish daily bag limit

Remove the requirement for the tarpon tag. Recognizing that there are good business reasons to doing away with the tarpon tag, staff will scope a proposal of 1 fish with a minimum size limit that corresponds to the state record to allow fishermen to continue to challenge that record while preventing the retention of any other tarpon that may be caught.

Staff also will scope a similar proposal of 1 fish over a maximum size limit (i.e., set at the state record) for black drum.

Reduce the possession limit for flounder to the daily bag limit. For flounder, staff will scope changing the possession limit so that it is equal to the bag limit for the recreational fishery. This is already the case in the commercial fishery. This will create some redistribution of the current catches in the recreational fishery and basically limit a person to 10 fish per trip instead of the 20 fish bag they can keep if they fish past midnight now. Part of the rationale is that since flounder mortality from recreational take makes up only 18% of its mortality, no matter what is done to the directed fishery it will not have a very large impact to the overall population.

Staff also will be looking at the coastwide recruitment and the bay-by-bay recruitment again for flounder, but at least coastwide it appears that recruitment is not really the issue with the fish’s sluggish recovery. We did not seen large declines in the recruitment when we were seeing declines in the fishery.

Designation of tripletail (Lobotes surinamensis) as a game fish. Staff will scope a proposal to list tripletail as a game fish, place a minimum size limit and a bag limit of 2. Alabama has a 16” minimum and bag limit of 3 and Florida has a 15” limit and bag limit of 2. Staff will be researching the literature and contacting other states to determine the appropriate length limit and justifications based on life history characteristics.


Committee Agenda Item No. 2
Presenter: Clayton Wolf

Regulations Committee
Proposed Big Game Regulations
General Rules for Denial of Various Deer Permits
Permission to Publish
November 2005

I. Executive Summary: This item presents proposed changes to rules governing the Scientific Breeder’s Permit program and proposes criteria within various permit programs for denying or conditioning permit issuance to persons with pending criminal prosecutions or a history of violating Parks and Wildlife Code and/or commission regulations.

Scientific Breeder’s Permits:

Conditional Issuance/Permit Denial Criteria:

II. Discussion: Parks and Wildlife Code, Chapter 43, Subchapter L, requires the Commission to establish permits and authorizes the promulgation of rules governing the possession of white-tailed deer and mule deer for scientific, management, and propagation purposes. The White-tailed Deer Advisory Committee (WTDAC) has met eight times since it was created in 2003, with the last held in February of 2005. In addressing topics such as Chronic Wasting Disease (CWD) testing, the Triple T permit program, and other issues, the Department utilized a CWD Task Force to develop recommendations to the committee concerning CWD testing and impacts. As a result, staff has developed a suite of regulatory proposals, based on those recommendations, affecting Deer Management Permit, Permits to Trap, Transport, and Transplant Game Animals and Game Birds (“Triple T” permits), and the Scientific Breeder’s Permit. The proposed changes primarily are aimed at refining the department’s efforts in managing the threat of Chronic Wasting Disease.

The past five years have seen explosive growth in the number of scientific breeder permits issued by the department. In 2000, the department issued 385 scientific breeder permits and 947 purchase permits. By 2005, the numbers had mushroomed to 821 breeder permits and 2,084 purchase permits. At the same time, the emergence of Chronic Wasting Disease (CWD) as a threat to native free-ranging deer populations has assumed national proportions. Additionally, the U.S. Department of Agriculture is expected to impose a mandatory identification and tracking protocols for captive cervids within the next five to ten years to address issues related to numerous animal diseases. Together, these developments highlight the need for the department to develop and implement effective methods for quickly and efficiently gathering, collating, storing, and retrieving the large and growing amounts of data generated by the industry. To this end, department staff from the Wildlife and Law Enforcement divisions have been meeting informally with the Breeder User Group (BUG), an ad hoc group composed of interested members of the regulated community, to gain insight into how best to modify the program to improve program delivery and administration while addressing department goals.

Staff also proposes to create uniform standards for the denial of permits to individuals who have been convicted of or received deferred adjudication for specific violations of the Parks and Wildlife Code and commission regulations and for the issuance of permits with reduced privileges to persons under prosecution for violations of Parks and Wildlife Code, Chapter 43 at the time of permit or renewal application. Additionally, staff proposes measures to prevent persons who have been prohibited from holding permits from continuing to do business through the use of surrogates or as agents.

Attachments - 4

  1. Exhibit A - Proposed Scientific Breeder Rules
  2. Exhibit B - Proposed Scientific Breeder Permit Fee Rule
  3. Exhibit C - Proposed "Triple T" Issuance Rule
  4. Exhibit D - Proposed DMP Issuance Rule

Commission Agenda Item No. 2
Exhibit A

Scientific Breeder Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §§65.609 and 65.610; amendments to §§65.601-65.603 65.607, and 65.608, and new 65.65.604 and 65.610, concerning Scientific Breeder’s Permits.

The proposed repeals, amendments, and new rules are a comprehensive revision of the department’s rules governing the scientific breeder permit program. The intent of the rulemaking is to restructure the administrative process of the program to make it compatible with the anticipated federal requirements for cervid monitoring and to improve program delivery and customer service.

The past five years have seen explosive growth in the number of scientific breeder permits issued by the department. In 2000, the department issued 385 scientific breeder permits and 947 purchase permits. By 2005, the numbers had mushroomed to 821 breeder permits and 2,084 purchase permits. At the same time, the emergence of Chronic Wasting Disease (CWD) as a threat to native free-ranging deer populations has assumed national proportions; the U.S. Department of Agriculture is expected to impose mandatory identification and tracking protocols for captive cervids within the next five to ten years to address issues related to numerous animal diseases. Together, these developments indicate a need for the department to develop and implement effective methods for quickly and efficiently gathering, collating, storing, and retrieving the large and growing amounts of data generated by the industry.

In another proposed rulemaking published elsewhere in this issue, the department proposes to increase the fees for scientific breeder permits and renewals. These changes are intended to increase the efficiency in the administration and delivery of the scientific breeder program. The expected results are increased program efficiency; the provision of more efficient and less time-consuming customer service; and the generation of coherent data for a number of useful purposes, such as disease monitoring.

The proposed repeal of §65.609, concerning Purchase of Deer and Purchase Permit, is necessary because the department is eliminating the purchase permit and the transport permit and replacing them with a single permit called a transfer permit.

The proposed repeal of §65.610, concerning Transfer of Deer and Transfer Permit, is necessary because the department is eliminating the purchase permit and the transport permit and replacing them with a single permit called a transfer permit.

The amendment to §65.601, concerning Definitions, corrects a misspelling of the scientific name for mule deer, adds new definitions for the terms ‘movement qualified,’ ‘transfer permit,’ and ‘release,’ and alters the definition of the terms ‘unique number’ and ‘serial number.’ The definition of ‘movement qualified’ is necessary because proposed new §65.604, concerning Disease Monitoring, would condition the movement of scientific breeder deer on the maintenance and results of disease-testing protocols. The definition establishes the department’s understanding of the meaning of the term, which is used to define a status under which deer cannot be added to or removed from a scientific breeder facility unless the facility is in compliance with the department’s disease-testing requirements (i.e., movement qualified). The definition of ‘transfer permit’ is necessary in order to establish that the transfer permit, although a multi-use permit, satisfies the requirements of Parks and Wildlife Code, §§43.361 and 43.362, which require a person to possess a permit issued by the department to purchase, ship, or transport deer. The proposed definition of ‘release’ would specify what the department considers to be the termination of possession of a scientific breeder deer. The definition is necessary to create an obvious point at which deer can no longer be considered in the possession of a scientific breeder. The proposed amendment of the definition of ‘unique number’ eliminates the option for permittees to employ user-generated numbering conventions for deer held under a scientific breeder permit and requires that all deer held under scientific breeder permits to be identified with a department supplied unique number. The amendment is necessary because the current provision has resulted in confusing and/or misleading identification conventions that interfere with the department’s attempts to maintain accurate records and inventories. The proposed amendment of ‘serial number’ clarifies that a serial number consists of the prefix “TX” followed by a four-digit number. The amendment is necessary to firmly establish what the department intends with respect to certain provisions involving serial numbers.

The amendment to §65.602, concerning Permit Requirement and Permit Privileges, adds a new subsection (b)(2) to state that a scientific breeder may purchase or accept deer from another scientific breeder. The provision is a nonsubstantive addition for purposes of clarification; under current rules, scientific breeders are allowed to obtain deer from other scientific breeders. The amendment also adds the term ‘transfer’ to the provisions of paragraph (3). Other provisions of this rulemaking would replace the transport and purchase permits and replace them with the transfer permit; the proposed amendment is necessary to add the function of the transfer permit to the list of activities authorized by a permit. The amendment also imposes an expiration date of March 31, 2007, for the provisions of subsection (c), regarding requirements for the release of deer into the wild from a scientific breeder facility. Under current rule, scientific breeder deer may not be released unless they originate from a herd enrolled in a valid herd health plan approved by the Texas Animal Health Commission (TAHC). The rule was originally promulgated as part of a joint effort between the department and TAHC to reduce the potential spread of Chronic Wasting Disease (CWD) from deer imported to scientific breeder facilities from outside the state.

Proposed new §65.604, concerning Disease Monitoring, establishes new provisions governing the movement and release of scientific breeder deer. Those provisions would allow a scientific breeder to establish a status (‘movement qualified’), over time, that qualifies the scientific breeder to move deer out of a facility for purposes of sale or release, provided the scientific breeder continues to perform disease testing at a certain rate (without positive tests). In order to allow for a seamless transition, the department will delay the effectiveness of certain requirements within §65.604 for one permit-year (i.e., until March 31, 2007) in order to give scientific breeders the opportunity to attain movement qualified status. In the interim, the provisions of §65.602(c) will continue in effect. The amendment is necessary to implement a better and more effective protocol for preventing captive native cervids from becoming a disease vector. The proposed amendment also restructures paragraph (6) to reflect the addition of the transfer permit and the elimination of the purchase and transport permits.

The amendment to §65.603, concerning Application and Permit Issuance, would require an affirmation from a certified biologist that a prospective facility physically exists and contains no deer prior to the time of application; change the permit year to run from July 1 to June 30 instead of from April 1 to March 31, and consolidate all provisions governing the effect of criminal prosecutions on permit issuance in one place. The department has discovered that in some cases, persons have acquired scientific breeder deer and placed them within a facility before applying for a scientific breeder permit, then added additional deer at later dates. Another practice noticed by the department was the certification of plans by a certifying biologist even though the facility had not been built yet. This has caused significant discrepancies and difficulties for the department in identifying, tracking, and inventorying deer and transactions among scientific breeders. As a result, the department feels it is necessary, as a part of the application process, to require the certifying biologist to affirm that the prospective facility exists and if it does, that no deer are being held in the facility. The amendment is necessary to ensure that the department is able to maintain an accurate record of the number of deer within scientific breeder facilities.

The current permit-year (April 1 – March 31) has proven to be problematic for both permittees and the department. Given the tremendous growth of the program, department staff has found it difficult to process the large number of renewal applications, causing inconvenient delays for permittees. The proposed amendment is necessary to provide additional buffer time between the end of the reporting period (March 31) and the beginning of the following permit year (July 1) to enable the department to issue permit renewals prior to the start of the permit year.

Under current rules, the department may, at its discretion, refuse to issue a scientific breeder’s permit or permit renewal to any person finally convicted of any violation of Parks and Wildlife Code, Chapter 43. In reviewing similar provisions in other regulations governing the possession of live animals, the department has determined that a more uniform approach to situations involving the criminal history (with respect to the Parks and Wildlife Code) of permit applicants is appropriate. Therefore, the department elsewhere in this issue is also proposing changes to similar provisions affecting deer management permits and permits for the trapping, transporting, and transplanting game animals and game birds.

The department intends to propose similar changes to the permits governing scientific, educational, zoological, and rehabilitation permits at a later date. As a result of the review, the department determined that the decision to issue or renew a permit should take into account the applicant’s history of violations involving the possession of live animals and major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies). The department reasons that it is appropriate to deny the privilege of possessing live animals to persons who exhibit a demonstrable disregard for the regulations governing the possession of live animals. Similarly, it is appropriate to deny the privilege of possessing live animals to a person who has exhibited demonstrable disregard for wildlife law in general by committing egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law. Therefore, the proposed amendment would allow the department to deny permit or renewal issuance to persons who have been finally convicted of or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, and R (which govern specialized permits for the possession of live animals), violations of the Parks and Wildlife Code or rules of the commission that are Class B misdemeanors, Class A misdemeanors, and felonies, and violations of Parks and Wildlife Code, §63.002, which although a Class C misdemeanor, specifically addresses the unlawful possession of live game animals.

The department also notes that the current rule is open-ended; theoretically, persons can be prevented from ever obtaining a permit following a conviction. The department has determined that it is appropriate for the department to consider only those convictions or deferred adjudications that have occurred within five years of an application for a permit or renewal, reasoning that a potential five-year period of permit denial will act as a sufficient deterrent to intentional violations. The department also stresses that the intent of the proposed amendments is to give the department a credible response to persons with a history of blatant disregard for the rules.

However, the department does not intend for a conviction or deferred adjudication to be an automatic bar to obtaining a permit. The department intends to consider a number of factors and make such determinations on a case-by-case basis. The factors that may be considered by the department in determining whether to deny a permit based on a conviction or deferred adjudication would include, but not be limited to, the seriousness of the offence, the number of offenses, the existence or absences of a pattern of offenses, the length of time between the offense and the permit application, the applicant’s efforts towards rehabilitation, and the accuracy of the information provided by the applicant regarding the applicant’s prior permit history. The proposed amendment also applies the same standards to agents. In many cases, permit activities are conducted by other persons in addition to the permittee. The department believes in addition to provisions affecting permittees, it is appropriate to prevent persons who have been convicted of or received deferred adjudication for an offense discussed previously from assisting in activities involving live animals. The proposed amendment also would allow the department to deny permit issuance to persons who, in the judgment of the department, are acting as surrogates for persons who are prohibited from obtaining a permit. In light of the proposed five-year period of time during which the department could choose to refuse permit issuance to persons convicted of the offenses, it is reasonable to assume that persons might attempt to circumvent the intent of the department (that they not engage in the business of breeding and selling deer) by using another person to obtain a permit with the objective of continuing to do business as usual in the name of the shadow permittee. It is therefore necessary to address the possibility.

Proposed new §65.604, concerning Disease Monitoring, would establish new protocols for the testing of scientific breeder deer for chronic wasting disease (CWD). Current rules prohibit the release of deer from any facility that is not enrolled in a valid herd health plan for cervidae approved by the TAHC. The current rule was promulgated in 2003 in response to concerns about the emergence of CWD in both captive and free-ranging deer populations in other states, which represents a potential threat to wild deer populations in Texas. The biological and epidemiological nature of CWD is not well understood and has not been extensively studied, but it is known to be communicable, incurable, and invariably fatal. The department has worked closely with the Texas Animal Health Commission to characterize the threat potential of CWD to native wildlife and livestock, and to determine the appropriate level of response. The department believes that vigilance and early detection are crucial to minimizing the severity of biological and economic impacts in the event that an outbreak occurs in Texas, and that the implementation of reasonable rules to detect the disease is necessary. The proposed new rule would allow a scientific breeder to release deer to the wild, provided the facility from which the deer are released is ‘movement qualified.’ Movement qualified status would be obtained by maintaining a herd-status level of at least “A” with the TAHC and testing eligible deer mortalities occurring within the facility such that test results of ‘not detected’ are returned on a minimum of 20% of all eligible mortalities and none are returned as ‘not detected’ from the Texas Veterinary Medical Diagnostic Laboratories. Status would be maintained by continuing to test at the minimum level, but could be lost if deer from a facility that is not movement qualified are introduced. If status is lost as a result of the acceptance of deer from a facility that is not movement qualified, movement of deer from the facility would be prohibited for a minimum of one year and the facility would have to reestablish movement qualified status.

The proposed amendment to §65.607, concerning Marking of Deer, would clarify that the unique number required to be tattooed in a deer’s ear must be a unique number assigned to the scientific breeder who possessed the deer when the deer was born or who lawfully obtained the deer from an out-of-state source. By rule, a deer may not leave a facility unless it has been tattooed with a unique number. This means that whenever a deer leaves the facility in which it was born (or to which it was introduced, if it was lawfully obtained from an out-of-state source), the deer must be tattooed with a unique number identifying that facility. For purposes of clarification, the amendment would add language to make the requirements of the section unmistakable. The amendment is necessary to ensure that the history of possession and movement of all deer held under scientific breeder permits is traceable for purposes of disease control and law enforcement.

The proposed amendment to §65.608, concerning Annual Reports and Records, would alter the reporting deadline for annual reports in order to comport the requirements of the section with changes that would alter the permit-year, discussed earlier in the proposed amendments to §65.603. The proposed amendment also would remove references to documentation such as purchase permits and invoices for temporary possession, which would no longer be necessary because they would be eliminated in favor of the transfer permit. The proposed amendment also requires that reports and records be maintained in a legible condition. The amendment is necessary to ensure that the department is able to accurately interpret information required to be kept by permittees. The proposed amendment also comports the section to reflect the creation of the transfer permit and the elimination of the purchase and transfer permits.

The proposed amendment to §65.610, concerning Transfer Permit, would create a single permit for the movement of deer from a scientific facility to any other place for any other purpose. Under current rules deer may be moved under the scientific breeder’s permit, a purchase permit, a transport permit, or a temporary invoice, each of which under different reporting and documentation standards, which creates a problematic recordkeeping burden for the department and the regulated community. This system was workable when the number of scientific breeders and persons patronizing scientific breeders were few; however, given the growth of the industry, a new approach is necessary. In concert with other proposed provisions of this rulemaking, the proposed amendment would eliminate all permits and fees other than the scientific breeders permit and replace them with a single, free permit that would be required in order to move deer to any destination for any purpose.

The proposed amendment establishes the transfer permit, specifies the period of validity, sets forth the circumstances and manner in which it is required to be used, and prescribes the recordkeeping and reporting requirements incidental to permit use. Under current rules, a transfer or purchase permit costs $30 and is valid for 30 days from the time it is activated (i.e., when the user of the permit notifies the department of pending activities for which the permit would be required). The proposed rule would eliminate the fee and impose a 10-day period of validity. The 30-day period proved problematic for enforcement and recordkeeping purposes, since 30 days is simply too great a time span within which to monitor or verify permit activities, and recordkeeping and reporting errors tend to be multiplied if permittees do not keep up with records in real time but instead wait until the end of the period of validity. The department believes that the 10-day period of validity, coupled with the 48-hour mandatory reporting window following the completion of each act of transfer, will improve program efficiency and facilitate easier compliance by the regulated community. Additionally, the requirement to report all deer movements, temporary or otherwise, within 48 hours, would greatly enhance the department’s ability to quickly track animals for the purpose of epidemiological investigation in the unfortunate event of certain disease detection.

2. Fiscal Note.

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

3. Public Benefit - Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of wild, native deer from communicable diseases, thus ensuring the public of continued enjoyment of the resource. Additionally, the protection of native deer herds will have the simultaneous collateral benefit of protecting captive herds, maintaining the economic viability of deer breeding operations.

(B) The direct adverse economic effect on small businesses, microbusinesses, and persons required to comply with the rules as proposed is associated with the disease-testing requirements of proposed §65.604, concerning Disease Monitoring.The estimated average cost of compliance is between $200 and $750 per year for each breeder who desires to maintain movement qualified status, depending on whether private veterinarians are employed remove, fix, and send samples or scientific breeders perform those functions themselves. This value was obtained by estimating the average number of eligible mortalities that will occur in each facility per year (five, although the number in most cases will be between one and three) and multiplying that value by the cost of a CWD test administered by the Texas Veterinary Medicine Diagnostic Lab (TVMDL) on a sample collected and submitted by the scientific breeder ($40: $25 for a brainstem in formalin or complete head, plus a $15 disposal fee by the lab). If the sample is collected, fixed, and submitted by a private veterinarian, the department estimates the cost to be approximately $150 per deer, testing included. The cost of compliance (i.e., the fee for a test performed by TVMDL) is the same for the largest and smallest businesses affected by the proposed rule. The cost of compliance per employee will vary depending on the number of employees of the scientific breeder. For a very small scientific breeder with only 2 or 3 employees, the cost of compliance per employee cold be as high as $100 to $375 per employee per year. On the other hand, if a scientific breeder has 100 employees, the cost of compliance would be only $2 to $7.50 per employee per year. Because the preponderance of deer breeding operations in the state qualify as small businesses or microbusinesses, the impact will be similar for most scientific breeders. The department has also determined that there is no feasible way to reduce the effect of the proposed rule on small or micro-businesses, because, as noted earlier, the preponderance of businesses affected by the proposed rule are probably small or micro-business as defined in Government Code, §2006.002. The department considered absorbing the costs of disease-testing, but determined that to do so would be fiscally impossible without additional fee increases; therefore, the department has determined that there is no alternative to the disease-testing requirements imposed by the rules, since the only way to be reasonably confident that CWD is not present in any given captive herd is to test at a statistically significant rate. The department also considered that federal and state programs are being developed to assist the regulated community in defraying or eliminating out-of-pocket expenses for disease testing. The department also notes that many, if not most, breeders are currently performing CWD testing as part of a herd health certification plan administered by TAHC and for those breeders the proposed rules will not impose additional costs and could result in reduced costs for disease testing.

The department also considered that a scientific breeder who in is compliance with current rules requiring enrollment in a herd health certification plan in order to release deer might not choose to obtain movement qualified status and thus would be prohibited from releasing deer, which could result in lost revenue to the breeder. The department reasons, however, that potential purchasers of deer will be aware of the potential danger of CWD and will prefer to purchase deer from herds that have been certified. Therefore, the department believes that most if not all scientific breeders will undertake testing.

There also will be direct adverse economic costs to small businesses, microbusinesses, and persons required to comply with fee increases; those impacts are discussed in the proposed amendment to 53.14, which is published elsewhere in this issue.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

(D) 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 rules.

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 repeals, amendments, and new rules are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which provides the Commission with authority to promulgate regulations governing the possession of white-tailed deer and mule deer for scientific, management, and propagation purposes.

The proposed repeals, amendments, and new rules affect Parks and Wildlife Code, Chapter 43.

§65.601. 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) Authorized agent—An individual designated by the permittee to conduct activities on behalf of the permittee. For the purposes of this subchapter, the terms 'scientific breeder' and 'permittee' include authorized agents.

(2) Certified Wildlife Biologist—A person not employed by the department who has been certified as a wildlife biologist by The Wildlife Society, or who:

(A) has been awarded a bachelor's degree or higher in wildlife science, wildlife management, or a related educational field; and

(B) has not less than five years of post-graduate experience in research or wildlife management associated with white-tailed deer or mule deer within the past 10 years.

(3) Common Carrier—Any licensed firm, corporation or establishment which solicits and operates public freight or passenger transportation service or any vehicle employed in such transportation service.

(4) Deer—White-tailed deer of the species Odocoileus virginianus or mule deer of the species Odocoileus hemionus[hemonius].

(5) Facility—One or more enclosures, in the aggregate and including additions, that are the site of scientific breeding operations under a single scientific breeder's permit.

(6) Movement qualified—A status, determined by the department, under which the removal of deer from a facility is authorized.

(7)[(6)] Propagation—The holding of captive deer for reproductive purposes.

(8) Release—the intentional release of a live deer from a permitted facility, or from a vehicle or trailer at a location other than a facility.

(9)[(7)] Sale—The transfer of possession of deer for consideration and includes a barter and an even exchange.

(10)[(8)] Scientific—The accumulation of knowledge, by systematic methods, about the physiology, nutrition, genetics, reproduction, mortality and other biological factors affecting deer.

(11)[(9)] Serial Number—A permanent four-digit number assigned to the scientific breeder by the department. A serial number shall be preceded by the prefix “TX”.

(12) Transfer permit – A permit authorizing the movement or shipping of deer as a result of purchase, sale, barter, exchange, or any other arrangement under which deer are physically removed from or accepted into a permitted facility.

(13)[(10)] Unique number—An [A four-digit] alphanumeric identifier assigned to a permittee for the purposes of individually identifying the [used by the department to track the ownership of a] specific deer held by the permittee. No two scientific breeder deer in this state may have the same unique number. [Unique numbers may be assigned by the department or by the permittee. If the permittee chooses to assign the unique numbers, each deer must be tattooed with the permittee's serial number in one ear and the unique number in the other ear. No two deer shall share a common unique number].

§65.602. Permit Requirement and Permit Privileges.

(a) No person may possess a live deer in this state unless that person possesses a valid permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R.

(b) Except as otherwise provided by this subchapter, a [A] person who possesses a valid scientific breeder's permit may:

[(1) possess deer within the permitted facility for the purpose of propagation;]

(1)[(2)] engage in the business of breeding legally possessed deer within the facility for which the permit was issued;

(2) purchase or otherwise lawfully take possession of deer lawfully possessed by another scientific breeder;

(3) sell or transfer deer that are in the legal possession of the permittee;

(4) release deer from a permitted facility into the wild as provided in this subchapter;

(5) recapture lawfully possessed deer that have been marked in accordance §65.607 of this title (relating to Marking of Deer) that have escaped from a permitted facility;

(6) temporarily relocate and hold deer in accordance with the applicable provisions of §65.610[(a)(2) and (3)] of this title (relating to Transfer Permit[Transport of Deer and Transport Permit]) [for breeding or nursing purposes]; and

(7) temporarily relocate and recapture buck deer under the provisions of Subchapter D of this chapter (relating to Deer Management Permit).

(c) The provisions of this subsection are effective until March 31, 2007. No person may release a deer obtained or possessed under this subchapter to the wild unless the person can prove that the deer came directly from a facility enrolled in a current, valid herd health plan for cervidae approved by Texas Animal Health Commission.

§65.603. Application and Permit Issuance.

(a) An applicant for an initial scientific breeder's permit shall submit the following to the department:

(1) a completed notarized application on a form supplied by the department;

(2) a breeding plan which identifies:

(A) the activities proposed to be conducted; and

(B) the purpose(s) for proposed activities;

(3) a letter of endorsement by a certified wildlife biologist which states that:

(A) the certified wildlife biologist has reviewed the breeding plan;

(B) the activities identified in the breeding plan are adequate to accomplish the purposes for which the permit is sought; [and]

(C) the biologist has conducted an inspection of the facility identified in the application and affirms that:

(i) the facility identified in the application:

(I) physically exists; and

(II) is adequate to conduct the proposed activities; and

(ii) no deer are present within the facility;

(4) a diagram of the physical layout of the facility;

(5) the application processing fee specified in Chapter 53, Subchapter A, of this title (relating to Fees); and

(6) any additional information that the department determines is necessary to process the application.

(b) A scientific breeder's permit may be issued when:

(1) the application and associated materials have been approved by the department; and

(2) the department has received the fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees).

(c) A scientific breeder's permit shall be valid from the date of issuance until the immediately following July 1[March 31].

(d) A scientific breeder's permit may be renewed annually, provided that the applicant:

(1) is in compliance with the provisions of this subchapter;

(2) has submitted a notarized application for renewal;

(3) has filed the annual report in a timely fashion, as required by §65.608 of this title (relating to Annual Reports and Records); and

(4) has paid the permit renewal fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees).

(e) An authorized agent may be added to or deleted from a permit at any time by faxing or mailing an agent amendment form to the department. No person added to a permit under this subsection shall participate in any activity governed by a permit until the department has received the agent amendment form.

(f) If a scientific breeder facility is enlarged or added to, the permittee shall submit an accurate diagram of the facility, including the additions or enlargements, to the department. No person shall introduce or cause the introduction of deer to a pen that has been added or enlarged unless the diagram required by this subsection is on file at the department's Austin headquarters.

(g) The department reserves the right to refuse permit issuance or renewal to any person who within five years of applying for a scientific breeder’s permit has been finally convicted of or received deferred adjudication for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or

(3) a violation of Parks and Wildlife Code, §63.002.

(h) The department reserves the right to prohibit any person for a period of five years from acting as an agent of any permittee if the person has been convicted of or received deferred adjudication for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or

(3) a violation of Parks and Wildlife Code, §63.002.

(i) The department may refuse to issue a permit to any person the department has reason to believe is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

§65.604. Disease Monitoring.

(a) The provisions of subsections (b)-(d) and (g) of this section take effect April 1, 2007.

(b) No person shall remove, or authorize or cause the removal of a live deer from a facility permitted under this subchapter unless:

(1) the facility is designated by the department as movement qualified; or

(2) the removal is specifically authorized by the department.

(c) No person shall knowingly or intentionally allow the introduction of a live deer from a facility that is not movement qualified into a facility permitted under this subchapter.

(d) The department may authorize the transfer of deer from a facility that is not movement qualified and for which there is no valid scientific breeder permit to a facility permitted under this subchapter; however, the receiving facility shall not allow any deer to be moved from the facility for a period of one year from the date the transfer occurs.

(e) A facility permitted under this subchapter is movement qualified if:

(1) it has been certified by the Texas Animal Health Commission (TAHC) as having a CWD Monitored Herd Status of Level A or higher;

(2) less than five eligible deer mortalities have occurred within the facility as of April 1, 2006;

(3) no CWD test results of ‘detected’ have been returned from the Texas Veterinary Medical Diagnostic Laboratories for deer submitted from the facility; and

(4) CWD test results of ‘not detected’ have been returned from the Texas Veterinary Medical Diagnostic Laboratories on a minimum of 20% of all eligible deer mortalities occurring within the facility as of April 1, 2006.

(f) An eligible mortality is any lawfully possessed deer aged 16 months or older that has died within a facility after April 1, 2006.

(g) A facility is no longer movement qualified if it cannot meet the requirements of subsection (e) of this section as of March 31 of any year; however, a facility may reestablish movement qualified status at any time by meeting the requirements of subsection (e) of this section.

(h) If a person receives or accepts into a facility that is movement qualified a deer from a facility that is known by the person not to be a movement qualified facility, the receiving facility immediately and automatically loses movement qualified status for a period of one year from the date the transfer occurred, as determined by the department.

§65.607. Marking of Deer.

(a) Each deer held in captivity by a permittee under this subchapter shall be permanently marked by an ear tag that shows the letters "TX" followed by the serial number assigned to the scientific breeder. All deer within a scientific breeder facility shall be ear-tagged by March 31 of the year immediately following their birth.

(b) No person shall remove or knowingly allow the removal of a deer held in a facility by a permittee under this subchapter unless it has been permanently tattooed in one or both ears with the[a] unique number assigned to the scientific breeder in lawful possession of the deer when the deer was born or who lawfully obtained the deer from an out-of-state source.

(c) No person shall introduce and no person shall accept a deer into a facility permitted under this subchapter if:

(1) an ear tag bearing the TX number of any scientific breeder other than the scientific breeder receiving the deer has not been removed; and

(2) the deer has not been affixed with an ear tag bearing the TX number of the scientific breeder receiving the deer [under the provisions of a purchase permit unless the ear tag identifying the seller has been removed from the deer and replaced with an ear tag bearing the TX number of the purchaser].

§65.608. Annual Reports and Records.

(a) Each scientific breeder shall file a legible, completed annual report on a form supplied or approved by the department[, accompanied by photocopies of all invoices for the temporary relocation of deer and all purchase permits used by the permittee during the reporting period,] by not later than May 15 [April 16] of each year.

(b) The holder of a scientific breeder's permit shall maintain and, on request, provide to the department adequate documentation as to the source or origin of all deer held in captivity[, including all invoices for the temporary relocation of deer, and buyer's and seller's invoices, as applicable, of all purchase permits used by the permittee.] (c) A person other than a scientific breederholding deer for nursing, breeding, or health care purposes shall maintain and, upon request, provide copies of transfer permits indicating [appropriate invoices attesting to] the source of all deer in the possession of that person.

§65.610. Transfer of Deer.

(a) General requirement. No person may remove deer from or accept deer into a permitted facility unless a valid transfer permit on a form provided by the department has been activated as provided in this section.

(b) Transfer by scientific breeder. The holder of a valid scientific breeder's permit may transfer legally possessed deer:

(1) to or from another scientific breeder as a result of sale, purchase or other arrangement;

(2) to or from another scientific breeder on a temporary basis for breeding or nursing purposes;

(3) to an individual who purchases or otherwise lawfully obtains the deer for purposes of release but does not possess a scientific breeder's permit;

(4) to an individual for the purpose of obtaining medical attention, provided the deer do not leave this state; and

(5) to a facility authorized under Subchapter D of this chapter (relating to Deer Management Permit) to receive buck deer on a temporary basis.

(c) Transfer by person other than scientific breeder. An individual who does not possess a scientific breeder's permit may possess deer under a transfer permit if the individual is transporting deer within the state and the deer were legally purchased or obtained from a scientific breeder for purposes of release.

(d) Release.

(1) The department may authorize the release of deer for stocking purposes if the department determines that the release of deer will not detrimentally affect existing populations or systems.

(2) Deer lawfully purchased, possessed, or obtained for stocking purposes may be held in captivity for no more than 30 days:

(A) to acclimate the deer to habitat conditions at the release site;

(B) when specifically authorized by the department;

(C) if they are not hunted prior to release; and

(D) if the temporary holding facility is physically separate from any scientific breeder facility and the deer being temporarily held are not commingled with deer being held in a scientific breeder facility. Deer removed from a scientific breeder facility to a temporary holding facility shall not be returned to any scientific breeder facility. No deer shall be released from a temporary holding facility during an open season or within ten days of an open season unless the antlers immediately above the pedicel have been removed.

(3) An individual who does not possess a scientific breeder's permit may possess deer under a transfer permit if the individual is transporting deer within the state and the deer were legally purchased or obtained from a scientific breeder for purposes of release.

(e) Transfer permit.

(1) A transfer permit is valid for 10 consecutive calendar days after it has been activated, including the day of activation.

(2) A transfer permit authorizes the transfer of deer to one and only one receiver.

(3) A transfer permit is activated only by:

(A) notifying the Law Enforcement Communications Center in Austin prior to the transport of any deer; or

(B) utilizing the department’s web-based activation mechanism prior to the transport of any deer.

(4) A person in possession of live deer at any place other than within a permitted facility shall also possess on their person a department-issued transfer permit legibly indicating, at a minimum:

(A) the species, sex, and unique number of each deer in possession;

(B) the source and destination facilities, or, if applicable, the specific release location for each deer in possession;

(C) the date and time that the permit was activated.

(5) Not later than 48 hours following the completion of all activities under a transfer permit, the permit shall be:

(A) legibly completed and faxed to the Wildlife Division in Austin by the person designated on the permit as the party responsible for notification of the department; or

(B) completed and submitted using the department’s web-based permit-completion mechanism.

(f) Marking of vehicles and trailers. No person may possess, transport, or cause the transportation of deer in a trailer or vehicle under the provisions of this subchapter unless the trailer or vehicle exhibits an applicable inscription, as specified in this subsection, on the rear surface of the trailer or vehicle. The inscription shall read from left to right and shall be plainly visible at all times while possessing or transporting deer upon a public roadway. The inscription shall be attached to or painted on the trailer or vehicle in block, capital letters, each of which shall be of no less than six inches in height and three inches in width, in a color that contrasts with the color of the trailer or vehicle. If the person is not a scientific breeder, the inscription shall be "TXD". If the person is a scientific breeder, the inscription shall be the scientific breeder serial number issued to the person.

[§65.609. Purchase of Deer and Purchase Permit.]

[(a) Deer may be purchased or obtained for:]

[(1) holding for propagation purposes if the purchaser possesses a valid scientific breeder's permit; or]

[(2) liberation for stocking purposes.]

[(b) Deer may be purchased or obtained only from the holder of a valid scientific breeder's permit.]

[(c) An individual may possess or obtain deer only after a purchase permit has been issued by the department. A purchase permit is valid for a period of 30 days after it has been completed (to include the unique number of each deer being transferred), dated, signed, and faxed to the Law Enforcement Communications Center in Austin prior to the transport of any deer. The purchase permit shall also be signed and dated by the buyer or buyer's agent prior to or at the time that the transfer of possession of any deer occurs.]

[(d) A purchase permit is valid for only one transaction and expires after one instance of use.]

[(e) A one-time, 30-day extension of effectiveness for a purchase permit may be obtained by notifying the department prior to the original expiration date of the purchase permit.]

[(f) A person may amend a purchase permit at any time prior to the transport of deer; however:]

[(1) the amended permit shall reflect all changes to the required information submitted as part of the original permit;]

[(2) the amended permit information shall be reported by phone to the Law Enforcement Communications Center in Austin at the time of the amendment; and]

[(3) the amended permit information shall be faxed to the Law Enforcement Communications Center in Austin within 48 hours of transport.]

[(g) The department may issue a purchase permit for liberation for stocking purposes if the department determines that the release of deer will not detrimentally affect existing populations or systems.]

[(h) Deer lawfully purchased or obtained for stocking purposes may be temporarily held in captivity:]

[(1) to acclimate the deer to habitat conditions at the release site;]

[(2) when specifically authorized by the department;]

[(3) for a period to be specified on the purchase permit, not to exceed six months;]

[(4) if they are not hunted prior to liberation; and]

[(5) if the temporary holding facility is physically separate from any scientific breeder facility and the deer being temporarily held are not commingled with deer being held in a scientific breeder facility. Deer removed from a scientific breeder facility to a temporary holding facility shall not be returned to any scientific breeder facility.]

[(i) No person may sell deer to another person unless either the purchaser or the seller possesses a purchase permit valid for that specific transaction.]

[§65.610. Transport of Deer and Transport Permit.]

[(a) The holder of a valid scientific breeder's permit may, without any additional permit, transport legally possessed deer:]

[(1) to another scientific breeder when a valid purchase permit has been issued for that transaction;]

[(2) to another scientific breeder on a temporary basis for breeding purposes. The scientific breeder providing the deer shall complete and sign a free, department-supplied invoice prior to transporting any deer, which invoice shall accompany all deer to the receiving facility. The scientific breeder receiving the deer shall sign and date the invoice upon receiving the deer, and shall maintain a copy of the invoice during the time the deer are held in the receiving facility. At such time as the deer are to return to the originating facility, the invoice shall be dated and signed by both the scientific breeder relinquishing the deer and the scientific breeder returning the deer to the originating facility, and the invoice shall accompany the deer to the original facility. A photocopy of the original of the invoice shall be submitted to the department with the annual report required by §65.608 of this title (relating to Annual Reports and Records). In the event that a deer has not been returned to a facility at the time the annual report is due, a scientific breeder shall submit a photocopy of the incomplete original invoice with the annual report. A photocopy of the completed original invoice shall then be submitted as part of the permittee's annual report for the following year.]

[(3) to another person on a temporary basis for nursing purposes, provided the deer do not leave this state. The scientific breeder shall complete and sign a free, department-supplied invoice prior to transporting deer to a nursery, which invoice shall accompany all deer to the receiving facility. The person receiving the deer shall sign and date the invoice upon receiving the deer, and shall maintain a copy of the invoice during the time the deer are held by that person. At such time as the deer are to return to the originating facility, the invoice shall be dated and signed by both the person holding the deer and the scientific breeder returning the deer to the originating facility, and the invoice shall accompany the deer to the original facility. A photocopy of the original of the invoice shall be submitted to the department with the annual report required by §65.608 of this title.]

[(4) to an individual who does not possess a scientific breeder's permit if a valid purchase permit for release into the wild for stocking purposes has been issued for that transaction;]

[(5) to and from an accredited veterinarian for the purpose of obtaining medical attention, provided the deer do not leave this state; and]

[(6) to a facility authorized under Subchapter D of this chapter (relating to Deer Management Permit) to receive buck deer on a temporary basis. The scientific breeder shall complete and sign a free, department-supplied invoice prior to transporting deer to a DMP facility, which invoice shall accompany all deer to the receiving facility. The DMP permittee or authorized agent receiving the deer shall sign and date the invoice upon receiving the deer, and shall maintain a copy of the invoice during the time the deer are held by that person. At such time as the deer are to return to the facility of origin, the invoice shall be dated and signed by both the person holding the deer under a DMP permit and the scientific breeder, and the invoice shall accompany the deer to the facility of origin. A photocopy of the original of the invoice shall be submitted to the department with the annual report required by §65.608 of this title.]

[(b) The department may issue a transport permit to an individual who does not possess a scientific breeder's permit if the individual is transporting deer within the state and the deer were legally purchased or obtained from a scientific breeder. A transport permit does not authorize and is not valid for the transport of deer into this state from any other state or country.]

[(c) Except as provided in this subchapter, no person may transport deer during any open season for deer or during the period beginning 10 days immediately prior to an open season for deer unless the person notifies the department by contacting the Law Enforcement Communications Center in Austin no less than 24 hours before actual transport occurs.]

[(d) During an open season for deer or during the period beginning 10 days immediately prior to an open season for deer, deer may be transported for the purposes of this subchapter without prior notification of the department; however, deer transported under this subsection shall be transported only from one scientific breeder facility to another scientific breeder facility. Deer transported under this subsection shall not be liberated unless the scientific breeder holding the deer notifies the Law Enforcement Communications Center no less than 24 hours prior to liberation.]

[(e) Transport permits shall be effective for 30 days from the date that the scientific breeder has completed (to include the unique number of each deer being transported), dated, signed, and faxed the permit to the Law Enforcement Communications Center in Austin prior to the transport of any deer. The transport permit shall also be signed and dated by the other party to a transaction (or their authorized agent) upon the transfer of possession of any deer.]

[(f) A transport permit is valid for only one transaction, and expires after one instance of use.]

[(g) A person may amend a transport permit at any time prior to the transport of deer; however:]

[(1) the amended permit shall reflect all changes to the required information submitted as part of the original permit;]

[(2) the amended permit information shall be reported by phone to the Law Enforcement Communications Center in Austin at the time of the amendment; and]

[(3) the amended permit information shall be faxed to the Law Enforcement Communications Center in Austin within 48 hours of transport.]

[(h) A one-time, 30-day extension of effectiveness for a transport permit may be obtained by notifying the department prior to the original expiration date of the transport permit.]

[(i) No person may possess, transport, or cause the transportation of deer in a trailer or vehicle under the provisions of this subchapter unless the trailer or vehicle exhibits an applicable inscription, as specified in this subsection, on the rear surface of the trailer or vehicle. The inscription shall read from left to right and shall be plainly visible at all times while possessing or transporting deer upon a public roadway. The inscription shall be attached to or painted on the trailer or vehicle in block, capital letters, each of which shall be of no less than six inches in height and three inches in width, in a color that contrasts with the color of the trailer or vehicle. If the person is not a scientific breeder, the inscription shall be "TXD". If the person is a scientific breeder, the inscription shall be the scientific breeder serial number issued to the person.]

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

Issued in Austin, Texas, on


Commission Agenda Item No. 2
Exhibit B

Scientific Deer Breeder – Permit Fee
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §53.14, concerning Deer Management and Removal Permits. The amendment would increase the fees for scientific breeder’s permits and renewals of scientific breeder’s permits. The current fee for a scientific breeder’s permit is $180; the current fee for a renewal is also $180. The proposed amendment would increase the respective fees to $280. The proposed amendment also would eliminate the fees for purchase and transport permits.

The past five years have seen explosive growth in the number of scientific breeder permits issued by the department. In 2000, the department issued 385 scientific breeder permits. By 2005, the numbers had mushroomed to 821 breeder permits permits. The growth of the program has introduced new levels of complexity and expense in administering the program, because keeping track of inventories, transactions, movements, and records is time-consuming and laborious. At the same time, the emergence of Chronic Wasting Disease (CWD) as a threat to native free-ranging deer populations has assumed national proportions. Within the next five years, the U.S. Department of Agriculture will impose mandatory identification and tracking protocols for captive cervids. Together, these developments point to the need for the department to develop and implement effective methods for quickly and efficiently gathering, collating, storing, and retrieving the large and growing amounts of data generated by the industry.

In another rulemaking published elsewhere in this issue, the department proposes to implement disease monitoring protocols not only in anticipation of federal requirements, but to ensure the viability of the deer-breeding in this state for the future. The proposed fee increases, along with the elimination of the fees for transport and purchase permits, are intended to increase efficiency without significantly impacting revenue. The expected result is increased program efficiency, providing more efficient and less time-consuming customer service, increased opportunity for the use of automation in the scientific breeder program, and furnishing coherent data for a number of useful purposes, such as disease monitoring. The proposed fee increase will also replace revenue lost as a result of the elimination of the fees for transport and purchase permits.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules. The increased revenue to the department as a result of the fee increase will be offset by the expense to the department of designing and implementing an automated system to assist in program delivery and administration.

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 anticipated as a result of enforcing or administering the rule as proposed will be the ability of the department to more accurately monitor the movement of deer in and out of scientific breeder facilities, which will assist the department in detecting abuses and protecting wild, native deer from communicable diseases.

(B) The direct adverse economic effect on small businesses, microbusinesses, and persons required to comply with the rule as proposed will be the additional $100 for a scientific breeder’s permit or permit renewal imposed by the fee increase (the fee for a scientific breeder’s permit is currently $180). The preponderance of deer breeding operations in the state qualify as small businesses or microbusinesses. The impact of the fee increase will be mitigated to some extent by the elimination of fees for transport and purchase permits, depending on the sales volume of each scientific breeder. Because the department cannot project in advance the number of deer that each scientific breeder will sell or purchase, the extent to which the elimination of the fees for transport and purchase permits will affect each breeder cannot be quantified. The cost of compliance (i.e., the fee for a permit) is the same for the largest and smallest businesses affected by the proposed rule. The cost of compliance per employee will vary depending on the number of employees of the scientific breeder. For a very small scientific breeder with only two or three employees, the cost of compliance per employee cold be as high as $50 per employee per year. On the other hand, if a scientific breeder has 100 employees, the cost of compliance would be only $1 per employee per year. Because the preponderance of deer breeding operations in the state qualify as small businesses or microbusinesses, the impact will be similar for most scientific breeders. The department has also determined that there is no feasible way to reduce the effect of the proposed rule on small or micro-businesses, because, as noted earlier, the preponderance of businesses affected by the proposed rule are probably small or microbusiness as defined in Government Code, §2006.002. The only alternative to the fee increase is to maintain the present method of program delivery and administration, which is operating at maximum capacity and unable to accommodate further growth without diminishing customer service and program efficiency.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of 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 the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which provides the Commission with authority to establish the fees for scientific breeder permits.

The proposed amendment affects Parks and Wildlife Code, Chapter 43.

§53.14. Deer Management and Removal Permits.

(a) Deer breeding and related permits.

[(1)] Scientific [scientific breeder's] and scientific breeder's renewal—280.[$180;]

[(2) deer purchase application—$30; and]

[(3) deer transport application—$30].

(b) Trap, transport and transplant permit application fees:

(1) nonrefundable application processing fee—$180; and

(2) nonrefundable application processing fee for amendment to existing permit—$30.

(c) Urban white-tailed deer removal permit:

(1) nonrefundable application processing fee—$180; and

(2) nonrefundable application processing fee for amendment to existing permit—$30.

(d) Deer management permit:

(1) deer management permit—$1,000; and

(2) renewal of deer management permit—$600.

(e) Antlerless and spike buck deer control permit application processing fee—$360

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

Issued in Austin, Texas, on


Commission Agenda Item No. 2
Exhibit C

Deer Permit Issuance
Triple T Provisions
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §65.109, concerning Issuance of Permit. The proposed amendment would modify the criteria used by the department to deny permit processing or issuance to persons on the basis of past convictions or violations of certain Parks and Wildlife Code provisions or department regulations. The proposed amendment would allow the department to refuse permit issuance to any person who applies for a permit to trap, transport, and transplant game animals and game birds (“Triple T” permit) within five years of being finally convicted of or receiving deferred adjudication for any violation of Parks and Wildlife Code, Chapter 43, Subchapters C,E, L, or R, any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony, or a violation of Parks and Wildlife Code, §63.002.

Under current rules, the department does not issue Triple T permits to applicants who have been finally convicted, during the two-year period immediately preceding the date of application, of any violation of the provisions governing the use of Triple T permits. The proposed amendment would eliminate the current automatic prohibition and allow permits to be issued at the department’s discretion; however, the current two-year period of applicability would be expanded to five years, the provisions of the subsection would also apply to deferred adjudication in addition to convictions, and the subsection would apply to a wider range offenses (those involving any permit authorizing the possession of live animals and those involving violations of the Parks and Wildlife Code that are more serious than the common violations involving bag limits, possession limits, etc).

The amendment also would allow the department to refuse to issue a permit to any person the department has reason to believe is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

The amendment also would authorize the department to deny or refuse to process a Triple T application if the applicant is a defendant in a prosecution for a violation of Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, or R.

The amendment is part of an overall effort to create uniform criteria for the denial of special permits or permit processing to persons who have been proven to exhibit disregard for statutes and regulations governing the privilege of taking or possessing wildlife, particularly under department permits for the possession of live wildlife issued pursuant to Parks and Wildlife Code, Chapter 43 (scientific, educational, and zoological permits, Triple T permits, scientific breeder’s permits, and deer management permits). However, the department does not intend for a prosecution, conviction or deferred adjudication to be an automatic bar to obtaining a permit. The department intends to consider a number of factors and make such determinations on a case-by-case basis. The factors that may be considered by the department in determining whether to deny a permit based on a conviction or deferred adjudication would include, but not be limited to, the seriousness of the offence, the number of offenses, the existence or absences of a pattern of offenses, the length of time between the offense and the permit application, the applicant’s efforts towards rehabilitation, and the accuracy of the information provided by the applicant regarding the applicant’s prior permit history.

2. Fiscal Note.

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

3. Public Benefit - Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the protection of live wildlife via the prevention of known abusers of wildlife permits from obtaining permits for the possession of live wildlife.

(B) There will be no direct adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

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 amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter E, which requires the commission shall 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 new rule and amendments affect Parks and Wildlife Code, Chapter 43.

§65.109. Issuance of Permit.

(a) Permits authorized under this subchapter:

(1) will be issued, with the exception of permits to trap, transport, and process surplus white-tailed deer, only if the activities identified in the application are determined by the department to be in accordance with the department's stocking policy;

(2) will be issued only if the application and any associated materials are approved by a Wildlife Division technician or biologist assigned to write wildlife management plans;

[(3) shall not be issued to individuals who are not in compliance with the reporting requirements specified in §65.115 of this title (relating to Reports)];

[(4) shall not be issued to applicants who have been finally convicted, during the two-year period immediately preceding the date of application, of any violation of the provisions of this subchapter;] and

(3)[(5)] do not exempt an applicant from the requirements of §§55.142-55.152 of this title (relating to Aerial Management of Wildlife and Exotic Animals).

(b) The department reserves the right to refuse permit issuance or renewal to any person who within five years of applying for a Triple T permit has been finally convicted of or received deferred adjudication for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class A misdemeanor, a Class B misdemeanor, or felony; or

(3) a violation of Parks and Wildlife Code, §63.002.

(c) The department reserves the right to prohibit any person for a period of five years from acting as an agent of any permittee if the person has been convicted of or received deferred adjudication for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony;

(3) a violation of Parks and Wildlife Code, §63.002.

(f) The department may prohibit a person from acting as an agent for any permittee if there is reason to believe that a person has committed a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R.

(g) The department may refuse to issue a permit to any person the department has reason to believe is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

(h) The department may deny or refuse to process a permit or renewal application if the applicant is a defendant in a prosecution for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R.

This agency hereby certifies that the proposal has been reviewed and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


Commission Agenda Item No. 2
Exhibit D

Deer Permit Issuance
DMP Provisions
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.131, 65.132, and 65.138, concerning Deer Management Permits (DMP). The proposed amendment to §65.131, concerning Deer Management Permit, would clarify that an approved deer management plan may be changed to comply with regulatory or statutory actions without being considered as a new application. Under current rule, any changes to a plan constitute a new plan and therefore the $1,000 fee for a new permit is applicable, rather than the renewal fee of $600. The amendment is necessary because the department wishes to make clear that changes necessitated by commission or legislative action do not constitute a new application.

The proposed amendments to §65.132, concerning Permit Application, and §65.138, concerning Violations and Penalties, would clarify the criteria used by the department to deny permit issuance to or prohibit participation in permitted activities by persons on the basis of past convictions or pending prosecutions for certain types of violations of the Parks and Wildlife Code or department regulations. The Parks and Wildlife Code states that deer managed under a DMP “remain the property of the people of the state of Texas and the holder of the permit is considered to be managing the population on behalf of the state.” Tex. Parks & Wild. §43.601. Permit activities are a privilege granted by the department under the assumption and expectation that the permittee will abide by permit provisions and applicable laws.

The proposed amendments would eliminate the current provisions regarding convictions and deferred adjudications in §65.138(b) and (c). Those provisions would be modified and moved to §65.132(c)-(e). Under current rules, the department may decline to issue a DMP to an applicant who has been finally convicted or has received deferred adjudication for any violation of the Parks and Wildlife Code within three years preceding the application for a DMP. The proposal would expand the current three-year period of applicability to five years. Also, the types of offenses which could prevent a person from obtaining a DMP would be modified to refer to offenses involving a permit authorizing the possession of live animals and serious offenses involving violations of the Parks and Wildlife Code (more serious than the more common violations such as bag limits, possession limits, etc).

Under proposed amendment to §65.132, the department may refuse to issue a permit to any person who applies for a DMP within five years of being finally convicted of or receiving deferred adjudication for any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R, any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony, or a violation of Parks and Wildlife Code, §63.002.

The proposed amendment to §65.132 also clarifies that the department may deny or refuse to process an application for a DMP if the applicant is a defendant in a prosecution for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, and R, any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony, or a violation of Parks and Wildlife Code, §63.002. When persons have been charged with a serious violation of certain provisions of the Parks and Wildlife Code or department regulations, it is reasonable for the department to reserve the right to deny or suspend the processing of a permit application because of the danger of further violations and the danger of harm to the resource.

The proposed amendment to §65.132 would provide that the department may refuse to issue a permit to any person the department has reason to believe is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities. In some cases, persons who have been prohibited from obtaining a permit have attempted to continue their activities by using proxies to obtain a permit. The department’s intent is to ensure that persons the department intends to prevent from engaging in certain activities are in fact prevented from doing so.

The department does not intend for a pending prosecution, conviction or deferred adjudication to be an automatic bar to obtaining a DMP. The department intends to consider a number of factors and make such determinations on a case-by-case basis. The factors that may be considered by the department in determining whether to deny a DMP based on a conviction, deferred adjudication or pending charges would include, but are not limited to, the seriousness of the offense, the number of offenses, the existence or absence of a pattern of offenses, the length of time between the offense and the permit application, the applicant’s efforts towards rehabilitation, and the accuracy of the information provided by the applicant regarding the applicant’s prior permit history.

The amendment also preserves, but moves from §65.138(c) to §65.132(d), the provision that completely bars a person from obtaining a DMP for three years after being convicted or receiving deferred adjudication for a violation of §65.136 of the department’s regulations (relating to Release).

The proposed amendment to section §65.132 also would reword the final sentence of subsection (a) to clarify the department’s interpretation of the provision. The current provision states that “A DMP will be issued following the approval of the applicant’s deer management plan by a Wildlife Division technician or biologist assigned to write wildlife management plans.” As reflected in the record of the original adoption of this section in August 2001, this provision was not intended to be a stand-alone criterion for permit issuance, but as an explanatory note to indicate that a deer management plan must be approved in order for a permit to be issued. Obviously, other provisions must be satisfied (payment of fees, completion of application materials, etc.) by an applicant before a permit is issued. The proposed amendment would state that a DMP will not be issued unless the applicant's deer management plan has been approved by a Wildlife Division technician or biologist assigned to write wildlife management plans. The amendment is necessary to avoid confusion about the intent of the provision.

The amendment to §65.138 would eliminate the provisions of subsections (b) and (c). Subsection (b) is no longer necessary, as it is being supplanted by proposed §65.132(c). Section 65.138(c) is being relocated without change to proposed §65.132(d)

The amendments are part of an overall effort to create uniform criteria for the denial of permits to persons who have been proven to exhibit disregard for statutes and regulations governing the privilege of taking or possessing wildlife, particularly under department permits for the possession of live wildlife issued pursuant to Parks and Wildlife Code, Chapter 43 (scientific, educational, and zoological permits, Triple T permits, scientific breeder’s permits, and deer management permits).

2. Fiscal Note.

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

3. Public Benefit - Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the protection of live wildlife via the prevention of known abusers of wildlife permits from obtaining permits for the possession of live wildlife.

(B) There will be no direct adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

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 amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter R, which authorizes the commission to issue a permit for the management of the wild white-tailed deer population on acreage enclosed by a fence capable of retaining white-tailed deer, subject to conditions established by the commission.

The proposed amendments affect Parks and Wildlife Code, Chapter 43.


§65.131. Deer Management Permit (DMP)

(a) The department may issue a Deer Management Permit to a person who has met the requirements of §65.132 of this title (relating to Permit Application and Fees).

(b) A person who possesses a valid Deer Management Permit may trap and detain wild deer according to the provisions of this subchapter and Parks and Wildlife Code, Chapter 43, Subchapter R. A permittee shall abide by the terms of an approved deer management plan.

(c) The provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, and L do not apply to deer lawfully being held in possession under authority of a valid DMP.

(d) Changes to an approved Deer Management Plan shall be considered as a new application, unless the changes are necessary to comply with regulatory or statutory requirements implemented after the deer management plan was approved.

(e) An applicant for a permit under this subchapter may request that a decision by the department to deny issuance of the permit be reviewed.

(1) An applicant seeking review of a decision of the department under this subsection shall contact the department within 10 working days of being notified by the department of permit denial.

(2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for a review.

(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

(A) the Director of the Wildlife Division;

(B) the Regional Director with jurisdiction;

(C) the Big Game Program Director; and

(D) the White-tailed Deer Program Leader.

(4) The decision of the review panel is final.

(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.

§65.132. Permit Application.

(a) Applicants for a DMP shall complete and submit an application on a form supplied by the department. Applications for a DMP shall be accompanied by a deer management plan containing the information stipulated by the application form and the nonrefundable fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees). Incomplete applications will be returned to the applicant and will not be processed until complete. A DMP will not be issued unless [following the approval of] the applicant's deer management plan has been approved by a Wildlife Division technician or biologist assigned to write wildlife management plans.

(b) A permit under this subchapter is valid from September 1 of one year through August 31 of the immediately following year.

(c) The department may refuse permit issuance or renewal to any person who within five years of applying for a DMP has been finally convicted of or received deferred adjudication for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class A misdemeanor, a Class B misdemeanor, or felony; or

(3) a violation of Parks and Wildlife Code, §63.002.

(d) 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.

(e) The department may prohibit any person for a period of five years from acting as an agent of any permittee if the person has been convicted of or received deferred adjudication for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony;

(3) a violation of Parks and Wildlife Code, §63.002.

(f) The department may prohibit a person from acting as an agent for any permittee if the person is a defendant in a prosecution for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or

(3) a violation of Parks and Wildlife Code, §63.002.

(g) The department may refuse to issue a permit to any person the department has reason to believe is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

(h) The department may deny or refuse to process a permit or renewal application if the applicant is a defendant in a prosecution for:

(1) any violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

(2) any violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or

(3) a violation of Parks and Wildlife Code, §63.002.

a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R.

§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 proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


Committee Agenda Item No. 3
Presenters: Steve Hall

Regulations Committee
Hunter Education Student Fee Increase –
Permission to Publish
November 2005

I. Executive Summary: Staff proposes to publish in the Texas Register, an action to raise the current hunter education student fee from $10.00 to $15.00 to offset the costs of developing and maintaining a more convenient hunter education course delivery system. This action also will enhance the quality of the current system of delivery methods including classroom, home study and Internet-assisted courses offered by volunteers, teachers and game wardens.

II. Discussion: In the 2004/2005 hunting license year, the department implemented a new “hunter education deferral” program that allows an adult to pay for the course up front and have the convenience of up to one year to complete it. The adult can hunt with another adult who already completed hunter education or who was born before September 2, 1971. The purpose of the program is to allow an adult “to give hunting a try.”

To follow up on the success of this adult recruitment method, staff plans to develop a tool to increase convenience of coursework – namely the time it takes to complete the hands-on training and the frequency of courses offered, especially in urban areas. As part of developing and maintaining a more convenient hunter education course option in Texas, staff proposes to raise the hunter education student fee from $10.00, to $15.00 – the cap allowed by statute (Section 62.014 Parks and Wildlife Code). The new fee structure will enhance the current delivery systems offered by volunteers and teachers, allowing them to recover more of their out-of-pocket expenses such as rising fuel costs, equipment, training aids and refreshments. (See Exhibit A, Hunter Education Fees - Proposed Preamble.)

Legislation (HB 2024) was introduced in the regular 79th session of the 2005 Texas Legislature to create such a system and to possibly eliminate the existing cap of $15.00 in hopes to create a market-driven system that would not compete with the existing volunteer-led effort. The legislation did not make it out of the Senate Natural Resources Committee to which it was referred in April 2005.

Hunter education staff met in June 2005 to develop a plan that enhances convenience in completing hunter education. (See Exhibit B – Hunter Education Plan –2005/2006.) Currently, the Department and its volunteers certify 33,000 students in over 4,400 courses.

Attachments - 2

  1. Exhibit A - Hunter Education Fees – Proposed Preamble
  2. Exhibit B - Hunter Education Plan, 2005-2006

Commission Agenda Item No. 3
Exhibit A

Hunter Education - Fees
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department (TPWD) proposes an amendment to §53.50, concerning Training and Certification Fees. The amendment would increase the fee for attending a hunter education class from $10 to $15. The amendment is necessary to maximize instructor recruitment efforts by increasing the monetary incentive for persons to become hunter education instructors. Under Parks and Wildlife Code, §62.014, the commission by rule may establish a procedure to allow a volunteer hunter education instructor to retain an amount from the fees collected by the instructor to cover the instructor's actual and necessary out-of-pocket expenses. Under current rule, an instructor is authorized to retain $5, which has been in effect since 1995. The department has determined that economic factors have affected the out-of-pocket expenses incurred by volunteer instructors over the last 10 years, and that it is appropriate to increase the amount retained by volunteer instructors. Volunteer instructors are critical to the viability of the hunter education program. Last year, approximately 2,500 volunteers provided hunter education training to 33,000 persons in Texas.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule, since the entirety of the additional revenue generated by the fee increase will be retained by private citizens who volunteer to be hunter education instructors.

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 anticipated as a result of enforcing or administering the rule as proposed will be the safety of the hunting and non-hunting public, via the recruitment of competent persons to instruct hunters in the safe handling and use of firearms, archery equipment, and crossbows.

(B) There will be no adverse economic effect on small businesses or micro businesses required to comply with the rule as proposed, as no small businesses or micro businesses are affected by the rule. There will be an economic cost to persons required to comply with the rule as proposed, namely, the $15 fee for obtaining hunter education certification.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

4. Request for Public Comment.

Comments on the proposed rule may be submitted to Steve Hall, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4568 (e-mail: steve.hall@tpwd.state.tx.us).

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, §62.014, which authorizes the commission to establish a fee not to exceed $15 to defray the costs of administering a hunter education program and to establish a procedure to allow a volunteer instructor to retain an amount from the fees collected by a volunteer hunter education to cover actual and necessary out-of-pocket expenses.

The proposed amendment affects Parks and Wildlife Code, Chapter 62.

§53.50. Training and Certification Fees.

(a) Marine safety enforcement training and certification fees.

(1) The fee for certification as a marine safety enforcement officer is $25.

(2) The fee for certification as a marine safety enforcement officer instructor is $25.

(b) Hunter education fees.

(1) The registration fee for a hunter education course is $15[$10], of which $10[$5] may be directly retained by a volunteer instructor.

(2) The fee for a deferred hunter education option is $10; however, at the time a person who has used a deferred hunter education option chooses to enroll in a hunter education course, that person shall pay a $5 registration fee to be directly retained by the volunteer instructor.

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

Issued in Austin, Texas, on


Committee Agenda Item No. 3
Exhibit B

Plan to Enhance Hunter Education in Texas
2005=2006

Hunter Education in Texas

Texas trains over 33,000 hunter education students each year. Most are required to complete the course to legally hunt in Texas; many are required to complete the training before purchasing licenses in other states such as Colorado and Kansas. Per statute, hunter education courses are advertised, scheduled and/or held in all counties at least once per year. Trained staff, volunteer instructors, high school agriculture science teachers and game wardens teach over 4,400 10-hour courses annually.

Need to Improve

In a recent report published by the National Shooting Sports Foundation (2004), Texas is among the “least restrictive states” in terms of hunting recruitment. The International Hunter Education Association considers Texas the top hunter education program state in terms of delivery methods, innovations, model statute, state mandate, number of students and instructors trained, recognition of instructors, communications via newsletters and quality of courses.

Still, the need to improve the convenience of coursework – number of sites offering hunter education and diversity of delivery schedules — is paramount to future successes of a program that needs to find more ways to attract young customers to hunting (recruitment). The need to increase the “entertainment value” of courses also is important. Families and youngsters must perceive the “fun and challenge” and incentives in educational opportunities provided them, or they may not participate.

As a result of hosting the “Governor’s Symposium on the North American Hunting Heritage” in December 2003, Texas Parks and Wildlife Department devised a “hunter education deferral” program to attract adults to hunting. The program allows an individual to pay for the course up front and have the convenience of up to a year to complete it.

Hunter education laws were already set up to recruit those under 17 years of age prior to completion of the mandatory training; however, those hunters age 17 and over had no way to “give hunting a try” prior to having to complete a course. The deferral gave the department such a tool without taking away from the successes of hunter education as a learning tool for promoting safe, responsible hunting practices.

Preliminary results from the purchases of deferrals in FY05 license period (September 2004 thru August 2005) indicate that 30% were new to hunting, 60% relatively new to hunting. Sixty percent of deferral purchasers had not purchased a hunting license in the three years previous to FY05 license period.

In January, 2005, hunter education staff convened a meeting of sporting good retailers and others to brainstorm ways that hunter education could be more involved in recruiting new hunters and providing coursework in more locations and in even more convenient formats. From the meeting an idea surfaced that would create points of hunter education opportunities where the hunters are – at retail outlets, shooting ranges and on leases throughout Texas. Along with hunting product, shooting sports opportunities and access, what if such outlets also could provide ample hunter education opportunities to bolster what 3000 trained instructors already achieve?

The idea was fleshed out and from it the notion of a new format of delivery surfaced – the Hunter Education Short Course. The deliverer of such a short course is the Hunter Education Provider.

Legislation (HB 2024) was introduced in the regular 79th session of the 2005 Texas Legislature to create such a system and to possibly eliminate the existing cap of $15.00 in hopes to create a market-driven system that would not compete with the existing volunteer-led effort. The legislation did not make it out of the Senate Natural Resources Committee to which it was referred in April 2005.

Hunter education staff met in June 2005 to develop a plan. Most important in staff’s minds was that volunteers continue to play a vital role in delivering hunter education alongside these new Hunter Education Providers. In fact, many volunteers, once trained, could become providers and conduct the new short courses at key locations and with new partners.


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