Commission Agenda Item No. 7
Presenter:  Alan Cain

Action
Implementation of Legislation
Senate Bill 498 — Permits to Trap, Transplant, and
Process Surplus White-tailed Deer
January 26, 2012

I.       Executive Summary:  This item presents for adoption a proposed amendment to the rules governing permits to trap, transplant, and process surplus white-tailed deer (TTP permits).  The proposed amendment would implement the requirements of Senate Bill 498, enacted by the 82nd Texas Legislature, which requires the Commission to establish the conditions under which a qualified individual could be issued a TTP permit.

II.      Discussion:  Parks and Wildlife Code, Chapter 43, Subchapter E, authorizes the Commission to establish permits and promulgate rules governing the trapping, transporting, and processing of surplus white-tailed deer.  Prior to the enactment of SB 498, issuance of TTP permits was statutorily limited to political subdivisions or property owners’ associations.  Under the provisions of SB 498, Parks and Wildlife Code, Chapter 43, Subchapter E, was amended to require the Commission to adopt rules for determining the circumstances under which a qualified individual may obtain a TTP permit.  The proposed amendments would establish the specific conditions under which a qualified individual could be issued a TTP permit.

Staff was authorized at the May 2011, meeting of the Regulations Committee to publish proposed rules required or authorized by legislation enacted by the 82nd Legislature.  The proposed amendments were published in the December 23, 2011, issue of the Texas Register (36 TexReg 8739).  Staff will present a summary of public comment at the time of the meeting.

III.     Recommendation:  The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to §65.101 and §65.104, concerning Permits to Trap, Transplant, and Process Surplus White-tailed Deer, with changes as necessary to the proposed text as published in the December 23, 2011, issue of the Texas Register (36 TexReg 8739).”

     Attachments — 1

  1. Exhibit A – Proposed Rule

Commission Agenda Item No. 7
Exhibit A

PERMITS TO TRAP, TRANSPORT, AND PROCESS
SURPLUS WHITE-TAILED DEER
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to Title 31, Texas Administrative Code, Chapter 65, Subchapter C, concerning Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds.  The proposal would amend §65.101 concerning Definitions and §65.104 concerning Permit to Trap, Transport, and Process Surplus White-tailed Deer (TTP permit). The proposed new rule would establish the conditions under which a qualified individual could be issued a TTP permit.

         Parks and Wildlife Code, Chapter 43, Subchapter E, authorizes the Texas Parks and Wildlife Commission to establish permits and promulgate rules governing the trapping, transporting, and processing of surplus white-tailed deer by property owners’ associations and political subdivisions. Under the provisions of Senate Bill 498, enacted by the 82nd Texas Legislature, Parks and Wildlife Code, Chapter 43, Subchapter E, was amended to require the commission to adopt rules for determining the circumstances under which a qualified individual (in addition to property owners’ associations and political subdivisions) may obtain a TTP permit.

         The proposed amendment to §65.101 would add the statutory definition of “qualified individual,” contained in Parks and Wildlife Code §43.0612(a)(2), as added by SB 498, which is “an individual who has a wildlife management plan approved by the department.”  This definition is included for ease of reference.

         The proposed amendment to §65.104 would stipulate the circumstances under which a qualified individual may obtain a TTP permit. The circumstances would require a qualified individual to have been a qualified individual for at least the two-year period immediately preceding an application for a TTP; to have been in reasonable compliance, as determined by the department, with the recommendations of the wildlife management plan for the two years immediately preceding an application for a TTP; and to have a wildlife management plan that recommends the harvest of at least 100 deer in the year for which a TTP is sought. The two-year period for maintaining and reasonably complying with the recommendations of a wildlife management plan was selected because the department intends to ensure that a reasonable and genuine effort has been made to control deer populations by means of traditional hunting activities before authorizing measures that would preempt traditional hunting. The 100-deer harvest recommendation threshold was selected because the department intends for the rule to function as a method for landowners to reduce surplus populations on a single property when traditional hunting pressure is inadequate, rather than a method to remove nuisance deer in an area of multiple properties, and to restrict TTP activities to properties where the removal is biologically efficacious.

2. Fiscal Note.

          Alan Cain, White-tailed Deer Program Leader, 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. Cain 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 conformity of department regulations with the provisions of the Texas Parks and Wildlife Code.

         (B) 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 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.

         The department has determined that the rules as proposed would not affect any small or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006. There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the department 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 rules 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, §43.0612, as amended by Senate Bill 498, enacted by the 82nd Texas Legislature, Regular Session (2011), which requires the commission to adopt rules for determining the circumstances under which a qualified individual may obtain a TTP permit.

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

         §65.101. 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) Amendment — A specific alteration or revision of currently permitted activities, the effect of which does not constitute, as determined by the department, a new trapping, transporting and transplanting operation.

                 (2) Certified Wildlife Trapper — An individual who receives a department-issued permit pursuant to this section.

                 (3) Natural Habitat — The type of site where a game animal or game bird normally occurs and existing game populations are not dependent on manufactured feed or feeding devices for sustenance.

                 (4) Nuisance Squirrel — A squirrel that is causing damage to personal property.

                 (5) Overpopulation — A condition where the habitat is being detrimentally affected by high animal densities, or where such condition is imminent.

                 (6) Permittee — Any person authorized by a permit to perform activities governed by this subchapter.

                 (7) Permit year — September 1 of any year to August 31 of the following year.

                 (8) Processing facility — The specific destination of white-tailed deer trapped and transported pursuant to a permit to trap, transport, and process surplus white-tailed deer where deer will be processed for consumption.

                 (9) Qualified individual — An individual who has a wildlife management plan approved by the department.

                 (10)[(9)] Recruitment — The Fall survey estimate of the number of fawns (any deer less than one year of age) on a property.

                 (11)[(10)] Release Site — The specific destination of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

                 (12)[(11)] Stocking Policy — The policy governing stocking activities made or authorized by the department as specified in §§52.101-52.105, 52.201, 52.202, 52.301 and 52.401 of this title (relating to Stocking Policy).

                 (13)[(12)] Supervisory permittee — A person who supervises the activities of permittees authorized to conduct activities.

                 (14)[(13)] Trap Site — The specific source of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

                 (15)[(14)] Wildlife Stocking Plans — The stocking plan for a:

                         (A) trap site consists of the biological information about the trap site required by the department on the application for a permit under this subchapter; and

                         (B) release site is the same as that required for a wildlife management plan under the provisions of §65.25 of this title (relating to Wildlife Management Plan).

         §65.104. Permit to Trap, Transplant, and Process Surplus White-Tailed Deer.

                 (a) All deer trapped and transported pursuant to this section shall be delivered to a processing facility selected by the applicant and approved by the department. Acceptable processing facilities are:

                         (1) Texas Department of Criminal Justice penal facilities located in Palestine and Amarillo;

                         (2) other government-sanctioned penal facilities in the state of Texas;

                         (3) independent facilities in the state of Texas inspected for food safety by the Texas Department of State Health Services; and

                         (4) any other processing facility approved by the department.

                 (b) All carcasses shall be utilized, either by a penal facility, or by donation to a department-approved charitable organization.

                 (c) Deer may be euthanized at either the trap site or the processing facility. If deer are euthanized at the trap site, carcasses must be maintained in edible condition.

                 (d) The permittee is responsible for establishing an acceptable schedule for delivery of deer with the processing facility. However, transport of live, trapped deer shall begin within 20 hours of trapping.

                 (e) The applicant shall specify whether a trap site is the entire political subdivision or property owners’ association, or one or more individual tracts within the boundaries of the political subdivision or property owners’ association. If the trap site is an individual tract, it must be identified on the permit application.

                 (f) The department may issue a permit under this section to a qualified individual, provided, with respect to the tract of land for which a TTP is sought:

                         (1) the person has been a qualified individual for at least the two-year period immediately preceding an application for a TTP;

                         (2) the qualified individual has been in reasonable compliance, as determined by the department, with the recommendations of the wildlife management plan for each of the two years immediately preceding an application for a TTP; and

                         (3) the qualified individual’s wildlife management plan recommends the harvest of at least 100 deer in the year for which a TTP is sought.

                 (g)[(f)] The department may, at its discretion, require the applicant to supply additional information concerning the proposed trapping, transporting, and processing activity when deemed necessary to carry out the purposes of 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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