Commission Agenda Item No. 4
Presenter: Mitch Lockwood

Action
Deer Management Permit Rules
Pen Requirements and Release Provisions
May 27, 2010

I.       Executive Summary:  This item seeks adoption of proposed rules affecting the Deer Management Permit (DMP).  The proposed changes would:

II.     Discussion:  Under Parks and Wildlife Code, Chapter 43, Subchapter R, the Commission may establish the conditions for the use of a permit to manage deer on acreage enclosed by a fence capable of retaining white-tailed deer.  This permit is referred to as the Deer Management Permit, or DMP.

Current rules state that a pen used to temporarily retain deer under a DMP cannot be smaller than five acres in area unless it contains a minimum of 50,000 square feet of vegetative cover.  The White-tailed Deer Advisory Committee (WTDAC) recommends prohibiting pen sizes of less than five acres and requiring any pen used to temporarily retain deer under a DMP to contain at least 50,000 square feet of vegetative cover, irrespective of pen size.  The WTDAC also recommends that existing facilities be exempted from compliance with the new rules, if adopted.  In March, the Regulations Committee authorized staff to publish a proposed amendment that would allow this exception to be maintained only so long as ownership of the DMP property does not change, unless the change in ownership is due to inheritance by a child or spouse of the property owner.

Under current rule, deer kept under a DMP must be released by no later than August 31 of each year.  Comments provided to the WTDAC indicated that there is concern that fawn survivability would be enhanced if permittees were allowed to retain deer until the fawns were older and thus more likely to survive in the wild.  The Regulations Committee authorized staff to publish a proposed amendment that would allow the department to specify release dates on a permit-by-permit basis, depending on the ecoregion in which the permitted property is located.  

At the March meeting of the Regulations Committee, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the April 23, 2010, issue of the Texas Register (35 TexReg 3213).  Staff has collected public comment on the proposed rules and will present a summary at the meeting. 

III.    Recommendation:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to §65.134 and §65.136, concerning the deer management permit (DMP), with changes as necessary to the proposed text as published in the April 23, 2010, issue of the Texas Register (35 TexReg 3213).”

Attachments – 1

1.   Exhibit A – Proposed Rules


Commission Agenda Item No. 4
Exhibit A

Deer Management Permit Rules
Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §65.134 and §65.136, concerning the deer management permit (DMP).

         The proposed amendment to §65.134, concerning Facility Standards, would remove the current exception that allows DMP pens of fewer than five acres under certain circumstances and require all pens, irrespective of size, to have at least 50,000 square feet of natural vegetation of the type normally used by deer for concealment and cover.

         The proposed amendment to §65.136, concerning Release, would allow the department to establish the dates by which deer held under a DMP must be released each year.

         Under Parks and Wildlife Code, Chapter 43, Subchapter R, the department may 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. This permit is the Deer Management Permit (DMP). The current rule states that a DMP pen may be no more than 100 acres nor fewer than five acres in area; however, there is an exception that allows for a DMP pen of fewer than five acres in area, provided it contains a minimum of 50,000 square feet of continuous natural vegetative cover of the type typically used by deer for cover and concealment. The vegetative cover requirement is intended to provide a safe environment for wild white-tailed deer captured and placed in pens of less than five acres for DMP purposes. Wild animals are less susceptible to capture-induced trauma if they are kept in enclosures that mimic their usual habitat. The cover requirement currently does not apply to pens larger than five acres in size.

         The department’s White-tailed Deer Advisory Committee (WTDAC) discussed the issue of adequate cover and space and concluded that a five-acre pen without cover does not provide a safe environment for wild-caught white-tailed deer.  Furthermore, the WTDAC concluded that a 50,000 sq. ft. pen (1.1 acre) is not large enough to safely contain the maximum number of deer allowed under a DMP (21).  Therefore, the WTDAC recommended that the department initiate rulemaking to prohibit DMP pens of fewer than five acres in area and to require all DMP pens to provide a minimum of 50,000 square feet of natural vegetative cover. The WTDAC also advised that the rule be amended to eliminate the requirement that vegetative cover be continuous, because studies have shown that wild deer prefer broken cover to continuous cover.

         Staff concurs with the recommendations of the WTDAC and believes that the suggested rule changes will reduce stress on wild deer held in captivity under the authority of a DMP.

         The WTDAC also recommended that existing DMP infrastructure of less than five acres and  larger than five acres but with fewer than 50,000 square feet of natural cover be “grandfathered,” provided permits are kept continuously current and ownership does not change. The proposed amendment would address that recommendation by allowing a property in compliance with current requirements to be excepted from the proposed new standards provided the pens in question are continuously included in permit renewal applications, the permit is continuously renewed, and ownership of the property does not change. The proposed amendment also allows a spouse or child who inherits a DMP property to continue to operate infrastructure that is less than five acres or  larger than five acres but with fewer than 50,000 square feet of natural cover, provided the permit is continuously renewed.

         The proposed amendment to §65.136, concerning Release, would extend release dates based on the ecoregion in which a property is located. In addition to the matters already addressed in this preamble, the WTDAC also engaged in a discussion of release dates. Under current rule, deer kept under a DMP must be released by no later than August 31 of each year.  This date was selected because it is the end of the state’s fiscal year and did not conflict with the trapping period. Testimony provided to the WTDAC indicated that there is concern that fawn survivability would be enhanced if permittees were allowed to retain deer until the fawns were older and thus more likely to survive in the wild. The department has determined that there is no resource concern associated with extending release dates; therefore, the proposed amendment also would alter the current release date to allow the department to specify the release date on a permit-by-permit basis, depending on the ecoregion in which the permitted property is located. The department intends to use breeding chronology data to determine the latest date in each ecoregion that deer could be released without creating the likelihood that bred does would be recaptured in the following trapping season. Breeding chronology data indicate that if deer are released a minimum of 45 days prior to the trapping deadline of the subsequent DMP trapping season, there is very little probability that bred does will be recaptured.

         Staff has determined that the amendments as proposed will not result in negative biological implications for the resource.

2. Fiscal Note.

         Mitch Lockwood, Acting Director of the Big Game Program, has determined that for each of the first five years that the proposed rules are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rules.

3. Public Benefit/Cost Note.

         Mr. Lockwood also has 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 public resources and the enhanced survivability of white-tailed deer held under a DMP.

         Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         (B) The department has determined that there will be no direct adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendments as proposed, because the rule will not apply to any current permittee, provided the permittee continuously renews his or her permit. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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 rules as proposed will not impact local economies.

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

         (E) 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 amendments may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.state.tx.us.

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, §43.603, which authorizes the commission to establish conditions for the deer management permit.

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

         §65.134. Facility Standards.

                 (a) No pen used to detain deer under a DMP shall be more than 100 acres in area or less than five acres in area[, except as provided in subsection (b) of this section].

                 (b) A pen [less than five acres in area] must contain at least 50,000 square feet of [continuous] natural vegetation of the type typically used by white-tailed deer for concealment and cover.

                 (c) Exceptions.

                         (1) The department may issue a DMP for a property that includes a pen of less than five acres in area, provided:

                                  (A) the pen contains at least 50,000 square feet of natural vegetation of the type typically used by white-tailed deer for concealment and cover;

                                  (B) the pen was authorized under a DMP as of August 31, 2010;

                                  (C) the pen is included in the deer management plan submitted to the department for permit renewal for the 2011 permit year and every year thereafter; and

                                  (D) the property for which the DMP is sought is owned by one of the following:

                                          (i) the same person who owned the property as of August 31, 2010; or

                                          (ii) a spouse or child of the person who owned the property as of August 31, 2010, if the spouse or child obtained ownership of the property by inheritance, will, or intestate succession, provided the spouse or child makes application for a DMP permit within one year of the date the spouse or child obtained ownership of the facility.

                         (2) The department may issue a DMP for a property that includes a pen containing less than 50,000 square feet of natural vegetation of the type typically used by white-tailed deer for concealment and cover, provided:

                                  (A) the pen includes at least five acres in area;

                                  (B) the pen was part of an approved facility of August 31, 2010;

                                  (C) the pen is included in the deer management plan submitted to the department for permit renewal for the 2011 permit year and every year thereafter; and

                                  (D) the property for which the DMP is sought is owned by one of the following:

                                          (i) the same person who owned the property as of August 31, 2010; or

                                          (ii) a spouse or child of the person who owned the property as of August 31, 2010 , if the spouse or child obtained ownership of the property by inheritance, will, intestate succession, provided that such person makes application for a DMP permit within one year of the date the spouse or child obtained ownership of the facility.

                         (3) The provisions of subsections (a) and (b) of this section apply to all applications that do not qualify for an exception under the provisions of subsection (c) of this section.

                 (d) [(c)] Except for fawns born in a DMP facility during the current permit year, no pen at any time shall contain more than:

                         (1) one buck deer; and/or

                         (2) 20 doe deer.

         §65.136. Release.

                 (a) Release of deer shall be effected by removing, for a total of at least 20 feet, those components of a pen that serve to maintain deer in a state of detention within the pen; however, no opening shall be less than 10 feet in width. Such components shall be removed for no fewer than 30 consecutive days.

                 (b) At any time that components of a pen are removed or manipulated for the purposes of releasing wild deer, all externally provided food and water (i.e., food or water that does not naturally occur at the site) shall be removed or made inaccessible to deer for no fewer than 30 days.

                 (c) All deer within a DMP pen shall be released on or before the date specified for the facility by the department [August 31 of each year].

                 (d) Except for deer authorized by the department for release elsewhere under a permit to trap, transport, and transplant game animals and game birds, all deer released from a DMP pen shall be released directly into the pasture where they were captured for the purposes of activities under this subchapter.

         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


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