TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 65. WILDLIFE

SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

The Texas Parks and Wildlife Department proposes amendments to §§65.81, 65.82, 65.85, 65.88, and 65.94, concerning Disease Detection and Response. The proposed amendments are intended to replace emergency rules affecting Subchapter B, Division 1 adopted on January 26, 2017 (42 TexReg 531) and to alter the "comprehensive CWD management rules" (Subchapter B, Division 2) adopted in 2016 (41 TexReg 5726).

Chronic wasting disease (CWD) is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle and commonly known as "Mad Cow Disease"), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. What is known is that CWD is invariably fatal to certain species of cervids, and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease in free-ranging populations correlates with deer population declines and human dimensions research indicates that hunters will avoid areas of high CWD prevalence. If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion dollar ranching, hunting, wildlife management, and real estate economies could be significant.

The department has engaged in several rulemakings over the years to address the threat posed by CWD. In 2005, the department closed the Texas border to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and record keeping. (The closing of the Texas border to entry of out-of-state captive white-tailed and mule deer was updated, effective in January 2010, to address other disease threats to white-tailed and mule deer published in the Texas Register (35 TexReg 252)).

On July 10, 2012, the department confirmed that two mule deer sampled in the Texas portion of the Hueco Mountains in far west Texas tested positive for CWD. In response, the department adopted rules (Subchapter B, Division 1) in 2013 (37 TexReg 10231) to implement a CWD containment strategy in that area. Those rules established a system of zones within which the movement of live deer under department permits (Deer Breeder Permit (DBP), Permit to Trap, Transport, and Transplant Game Animals and Game Birds (popularly called the "Triple T" permit, and Deer Management Permit (DMP)) is restricted, and required deer harvested in specific geographical areas to be presented at check stations to be tested for CWD. In 2016, those rules were modified (41 TexReg 7501) in response to additional CWD discoveries in the Texas Panhandle and Medina County, creating additional Surveillance Zones (SZs) and an additional Containment Zone (CZ) in West Texas.

In June of 2015 the department received confirmation that a two-year-old white-tailed deer held in a deer breeding facility in Medina County ("index facility") had tested positive for CWD, which was followed by positive test results for white-tailed deer in three additional deer breeding facilities. Subsequent testing confirmed the presence of CWD in additional white-tailed deer at the index facility. The source of the CWD at the index facility has not been determined. In response, the department first adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, then developed interim rules (41 TexReg 815) intended to function through the 2015-2016 hunting season until permanent rules could be developed. Working closely with the Texas Animal Health Commission (TAHC), the regulated community, and key stakeholders, and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department developed the "comprehensive CWD management rules" (Subchapter B, Division 2), adopted in 2016 (41 TexReg 5726). The comprehensive CWD management rules address the movement and consequences of movement of live deer under various department-issued permits (DBP, Triple T, and DMPs). Concurrently, the department engaged in rulemaking affecting Subchapter B, Division 1 (41 TexReg 7501) to create additional SZs and a CZ, including SZ 3, which affects a portion of Bandera, Medina, and Uvalde counties. A CZ was not established in this area because the department was approached by concerned county officials and landowners in Medina County who committed to organizing a volunteer hunter and landowner effort to provide the department with a sufficient number of valid "not detected" CWD test results, which would allow the department to make an epidemiologically sound determination about the prevalence (if any) of CWD within the SZ. In choosing to forgo the creation of a CZ, the department considered that CWD had not been encountered in free-ranging deer in that area, that deer breeding facilities by their nature are designed and built to prevent contact between captive deer and free-ranging deer (which is also prohibited by rule), and that breeding facilities where CWD was discovered were operating under TAHC herd plans, which restrict deer movement and require CWD testing at a level equal to or greater than that required in a CZ. The amendment to §65.88, concerning Deer Carcass Movement Restrictions, also exempted SZ 3 from the applicability of the provisions of that section that imposed mandatory check station and carcass movement restrictions.

On January 24, 2017, the department received confirmation that a 1.5-year-old male white-tailed deer harvested by a hunter within SZ 3 in Medina County during the 2017-2018 hunting season had tested positive for CWD. The deer was free-ranging and was harvested on a low-fenced property. There is currently no evidence that the deer was a deer liberated from a deer breeding facility and the harvest site has not been a release site for breeder deer or deer under any other department-administered permit programs. Prior to this discovery, CWD discoveries in this part of the state occurred only in deer breeding facilities and their associated release sites.

As a result of the detection of CWD in a free-ranging white-tailed deer, consistent with epidemiological science and in consultation with TAHC, the department determined that prompt action to contain CWD in this area was necessary in order to protect species managed by the department and thus adopted emergency rules to create a CZ in a portion of Medina, Bandera, and Uvalde counties. The proposed amendments would replace the emergency rules.

The proposed amendment to §65.81, concerning Containment Zones; Restrictions, would create a CZ in a portion of Bandera, Medina, and Uvalde counties. A CZ is a specific location in which CWD has been detected or the department has determined, using the best available science and data, that CWD detection is probable. With respect to the CZ that would be established by this rulemaking, the department in consultation with TAHC determined that for any given deer breeding facility or release site where breeder deer have been released and CWD has been discovered, the highest probability for detecting CWD that might have spread from that property is within approximately two miles of the property boundary. For a location at which CWD has been detected in a free-ranging white-tailed deer, the highest probability of detection would be within approximately a five-mile radius from the approximate location where the deer was harvested. Contact (and therefore, the potential for disease transmission) between free-ranging deer is more problematic than contact between captive deer in a breeding facility, since by definition a free-ranging deer is limited for the most part only by the biological range of movement typical for deer in that area of the state.

For purposes of legal precision, the proposed amendment describes the perimeter of the CZ in Bandera, Medina, and Uvalde counties by latitude-longitude coordinate pairs. The department notes that although the CZ designation imposes mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer, it is not necessary for hunters to be aware of or concerned with CZ boundaries, since the CZ is wholly within an SZ where mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer also apply. The SZ is delineated by easily recognizable roadway and river boundaries. The CZ designations affect only persons and properties within the CZ where deer are possessed pursuant to permits issued by the department; thus, although the exact boundary of the proposed CZ 3 is discernable to anyone using latitude-longitude coordinate pairs, the department is able to communicate directly with affected persons to make them aware of the rules’ implementation. The department also notes that it will undertake an intensive outreach effort to inform the public.

The proposed amendment to §65.81 also would stipulate that if any portion of a deer breeding facility or release site is within a CZ, the entirety of the deer breeding facility or release site is considered to be in the CZ and subject to CZ restrictions. Because CWD is known to be spread by both physical and environmental vectors, it is necessary, from an epidemiological perspective, to ensure that the totality of any environment that could have been exposed to CWD be captured by the CZ designation.

The proposed amendment to §65.81 would differ from both the current rules and the emergency rules that it replaces by liberalizing restrictions on the movement of breeder deer within the CZ. Under both the current rules and the emergency rules, the movement of breeder deer within a CZ is prohibited, except for deer breeding facilities with Transfer Category 1 (TC 1) status, which are allowed to release breeder deer to adjoining acreage if that acreage is also owned by the permittee (under Subchapter B, Division 2, deer breeding facilities obtain deer movement privileges based on CWD testing performance, with TC 1 representing the highest relative confidence that CWD is not present and TC 3 the lowest). Under the amendment as proposed, deer breeding facilities with TC 1 status located within a CZ would be allowed to transfer or release breeder deer anywhere within the CZ (but not beyond the CZ). Deer breeding facilities with TC 2 status would be allowed to release breeder deer to adjoining acreage, provided that acreage is owned by the deer breeder and every deer released has had a tonsil biopsy test for CWD with a result of "not detected" no more than 60 days prior to release.

The proposed amendment to §65.81 would allow breeder deer to be released within the CZ, provided the harvest at the release site is at a ratio of one deer per breeder deer released and the owner of the release site maintains a harvest log and reports that harvest to the department. The department believes that deer movements resulting in an increased number of potential hosts for CWD should not be authorized. By requiring one deer to be harvested for every deer released, the proposed provision would allow the movement of deer believed to be free of CWD while creating a zero-sum result in the number of potential disease hosts on the landscape. Under current rules, TC 2 deer breeding facilities in a SZ may receive deer from any deer breeding facility in the state and transfer or release breeder deer within the SZ, but are prohibited from transferring breeder deer outside the SZ. Also under current rules, TC 2 facilities in a CZ are prohibited from moving breeder deer under any circumstances. The department also believes that it is necessary that an assessment and reporting function be implemented in order to allow the department to verify that persons who receive breeder deer from outside the CZ are complying with the provisions of the proposed subparagraph.

The proposed amendment to §65.82, concerning Surveillance Zones; Restrictions, would alter SZ 2 and SZ 3. The alteration to SZ 2 would slightly increase the size of the SZ by extending its borders to include the cities of Dumas and Amarillo. The department has become aware that there are several taxidermists and processing facilities in Dumas and Amarillo that are just outside the current SZ, which means that deer harvested within the SZ legally cannot be taken to those locations because of carcass movement restrictions. Including the cities of Dumas and Amarillo will increase the number of taxidermists and processors available to hunters. The alteration to SZ 3 would slightly increase the size of SZ 3 by extending the western boundary to the Sabinal River. As noted previously in the discussion of the proposed amendment to §65.81, the department is creating a CZ in a portion of Bandera, Medina, and Uvalde counties, based on a distance of two miles from the boundaries of properties where CWD has been detected in deer breeding facilities and five miles surrounding locations where CWD has been detected in free-ranging deer. Consequently, the SZ surrounding the CZ must be extended, and the department has determined that extending it to the Sabinal River provides an easily recognized boundary for purposes of enforcement and compliance. The proposed amendment also would clarify that breeder deer from a deer breeding facility located outside a SZ may be released within a SZ.

The proposed amendment to §65.85, concerning Mandatory Check Stations, would increase the time period within which harvested deer must be presented at a mandatory check station for tissue sample collection for CWD testing, from 24 hours to 48 hours following harvest. In the Panhandle and far west Texas, hunters are sometimes a significant distance from the nearest check station, and because the typical hunting trip is multi-day and can result in the harvest of more than one deer, the department is persuaded that increasing the time period to 48 hours will provide convenience to hunters and land managers while posing little threat to sample viability. Rather than causing possible confusion by having a differential standard in different parts of the state, the department believes the 48-hour standard is best applied to all areas designated as a CZ or SZ. The proposed amendment also would eliminate subsection (f), which exempted SZ 3 from carcass movement restrictions and mandatory check stations. When SZ 3 was created, the department was approached by local officials who requested that the mandatory check station and carcass movement restrictions not be implemented in SZ 3 while a voluntary effort to provide samples was attempted. The department agreed to the request, reasoning that CWD had been detected only in permitted deer breeding facilities and sites where breeder deer had been released, all of which were issued TAHC hold orders that included surveillance requirements for all hunter-harvested deer. With the discovery of CWD in a free-ranging deer, however, the department finds that it is imperative to implement the mandatory check station and carcass movement restrictions in order to determine the extent and spread of CWD in free-ranging populations.

The proposed amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, would create a mechanism for TC 1 deer breeding facilities to temporarily retain that status in the event that an accredited testing laboratory were to lose or misplace test samples in a number that could result in such facilities being noncompliant and therefore automatically lowered in status. The amendment would provide a 45-day period following the end of the permit year for qualifying deer breeders to submit the necessary test samples to replace lost samples.

Clayton Wolf, Wildlife Division Director, 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 as proposed, as department personnel currently allocated to the administration and enforcement of disease management activities will administer and enforce the rules as part of their current job duties and resources.

Mr. Wolf also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduction of the probability of CWD being spread from facilities and locations where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

There will be adverse economic impact on persons required to comply with the rules as proposed. For deer breeders, those impacts are the same as the adverse economic impacts to small and microbusinesses, which are addressed later in this preamble.

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 on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that "generally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction." The 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. The guidelines also list examples of the types of costs that may result in a "direct economic impact." Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to "engage in the business of breeding breeder deer in the immediate locality for which the permit was issued" and to "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation." As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer. The same is not true of other permits issued by the department that authorize possession of live deer and are affected by the proposed rules (DMP, Triple T), which authorize the trapping, temporarily detention, and release of deer, but unlike the deer breeder permit do not authorize a permit holder to buy or sell deer, or to exchange deer for anything of value. Thus, any adverse economic impacts to small and microbusinesses resulting from the rules would be limited to deer breeder permit holders.

For the purposes of this analysis, the department considers all deer breeders to be small or microbusinesses. The department has determined that proposed rules will affect 10 deer breeders. All 10 affected breeding facilities are in the SZ delineated by current rule; however, six of those breeding facilities would be located within the new CZ contemplated by the proposed amendments. Of those seven facilities, two hold TC 1 status, three hold TC 2 status, and two hold TC 3 status.

Under current rules, TC 1 facilities in a SZ may transfer or liberate breeder deer anywhere except in a CZ and TC 1 facilities in a CZ cannot receive deer from or transfer deer to any other location, but may liberate breeder to immediately adjoining acreage under shared ownership. The proposed amendments would not alter the current prohibition of the transfer of breeder deer to destinations outside the CZ, but would allow TC 1 facilities in a CZ to receive deer from and transfer deer to other deer breeders in the CZ, and to release deer within the CZ. Therefore, the adverse economic impact to the TC 1 facility that is currently in SZ 3 but would be located within the proposed new CZ would consist of the loss of any sales to deer breeders or release sites outside the CZ. The department does not require deer breeders to report financial information such as sales volume, income, or pricing; thus, it is impossible for the department to estimate the value of such lost sales, although based on anecdotal reports it could be anywhere from many hundreds of dollars to many thousands of dollars. The department also notes, however, that deer breeders are required to report the sites where breeder deer are released, and department records indicate that one of the TC 1 facilities in question has not, within the last two years, released breeder deer at any locations outside the proposed CZ. Therefore, if the deer breeder in question does not intend to sell breeder deer for release outside the proposed CZ, that deer breeder would not be affected by the proposed rules. The other TC 1 facility has in the past transferred deer to areas outside the proposed CZ and would be prevented from doing so under the proposed rules; however, that facility has also released deer to adjoining acreage. Since the rules as proposed do not prevent the facility from releasing breeder deer to adjoining acreage, the facility in question will still have the potential to release breeder deer to adjoining acreage in order to provide for-profit hunting opportunity, as well as the ability to transfer or release breeder deer within the CZ.

Under current rules, TC 2 deer breeding facilities in a SZ may receive deer from any deer breeding facility in the state and transfer or release breeder deer within the SZ, but are prohibited from transferring breeder deer outside the SZ. Also under current rules, TC 2 facilities in a CZ are prohibited from moving breeder under any circumstances. The proposed amendments would authorize TC 2 facilities within a CZ to release breeder deer to immediately surrounding acreage under the same ownership as the breeder facility, provided each deer has been subjected to a tonsil biopsy test for CWD within 60 days of release and received test results of not detected Therefore, the proposed amendments could result in adverse economic impacts for the three TC 2 facilities that are currently within SZ 3 but would be within the CZ contemplated by the proposed amendments, because those facilities are currently able to release breeder deer within SZ 3, but under the proposed rules would be able to release deer only to adjoining acreage owned by the permittee. Therefore, the adverse economic impact to the three TC 2 facilities that are currently in SZ 3 but would be located within the proposed new CZ would consist of the loss of any sales to deer breeders or release sites outside the CZ. As noted previously, the department does not require deer breeders to report financial information such as sales volume, income, or pricing; thus, it is impossible for the department to estimate the value of lost sales resulting from the proposed rules (which in any event would be hypothetical, since there is no way to know what might occur in the future), but based on anecdotal reports of the market value of breeder deer, the value of lost sales could be anywhere from many hundreds of dollars to many thousands of dollars. The department notes, however, that because deer breeders are required to report the sites where breeder deer are released or transferred, it is possible to estimate adverse economic impacts on the basis of individual breeders’ transfer history, which indicate that all three of the affected TC 2 sites have released deer to acreage owned by the deer breeder adjoining the respective breeding facilities. Thus, the rules as proposed do not prevent the three TC 2 facilities from releasing breeder deer to adjoining acreage in order to provide for-profit hunting opportunity. The department also notes that if it can be determined that CWD has not been spread to additional segments of free-ranging deer populations, the need for the rules may no longer exist and they may be amended or repealed as necessary.

The rules as proposed will not result in adverse economic impacts to small and microbusinesses (i.e., deer breeders) in the SZ, since the rules as proposed alter only the boundaries of the current SZ and do not affect any deer breeders not currently affected by the rules in effect.

In the development of the proposed rules the department considered several alternatives to achieve the goals of the proposed rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

One alternative was to allow the emergency rules to expire after 120 days and revert to the current rules. This alternative was rejected because the presence of CWD in deer breeding facilities and free-ranging populations presents an actual, direct threat to free-ranging and farmed cervid populations and the economies that depend upon them. Although the current rules provide some level of monitoring and containment, the discovery of CWD in a free-ranging white-tailed deer in Medina County increases the concern that CWD has escaped containment. Therefore, because the department has a statutory duty to protect and conserve the wildlife resources of the state, the previous rules would not achieve the necessary level of vigilance needed to detect the presence and/or spread of CWD. Therefore, this alternative was rejected.

Another alternative considered was to simply prohibit the movement of deer in or out of the current SZ. While this alternative would significantly reduce the potential spread of CWD, it would also have the simultaneous effect of preventing landowners and land managers from implementing popular management strategies involving the movement of deer, and would deprive deer breeders across a much larger area of the ability to engage in the business of buying and selling breeder deer. Therefore, this alternative was rejected because the department determined that it placed an avoidable burden on the regulated community.

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 result in direct impacts to local economies.

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. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.

DIVISION 1. CHRONIC WASTING DISEASE (CWD)

31 TAC §§65.81, 65.82, 65.85, 65.88

The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

§65.81.Containment Zones; Restrictions.

The areas described in paragraph (1) of this section are CZs.

(1) Containment Zones.

(A) Containment Zone 1: That portion of the state within the boundaries of a line beginning in Culberson County where U.S. Highway (U.S.) 62-180 enters from the State of New Mexico; thence southwest along U.S. 62-180 to F.M. 1111 in Hudspeth County; thence south on F.M. 1111 to I.H. 10 thence west along I.H. 10 to S.H. 20; thence northwest along S.H. 20 to Farm-to Market Road (F.M.) 1088; thence south along F.M. 1088 to the Rio Grande; thence northwest along the Rio Grande to the Texas-New Mexico border.

(B) Containment Zone 2: That portion of the state within the boundaries of a line beginning where I.H. 40 enters from the State of New Mexico in Deaf Smith County; thence east along I.H. 40 to U.S. 385 in Oldham County; thence north along U.S. 385 to the Oklahoma state line.

(C) Containment Zone 3. That portion of the state lying within a line described by the following latitude-longitude coordinate pairs: -99.29398895, 29.63445412; -99.29825581, 29.63518578; -99.30259551, 29.63542449; -99.30693374, 29.63516617; -99.31119621, 29.63441523; -99.31530993, 29.63318453; -99.31763943, 29.63232767; -99.32143683, 29.63067377; -99.32384541, 29.62932681; -99.32666126, 29.62785671; -99.32852399, 29.62682249; -99.3307084, 29.62579214; -99.33264692, 29.62480476; -99.33469531, 29.62399444; -99.33870733, 29.62253062; -99.34246622, 29.62062167; -99.34590761, 29.61830028; -99.34897263, 29.61560618; -99.35160881, 29.61258551; -99.35377108, 29.60928997; -99.35542246, 29.60577597; -99.35653475, 29.60210367; -99.35708897, 29.5983359; -99.35732723, 29.5958866; -99.35816216, 29.59215856; -99.35843314, 29.58836717; -99.35813559, 29.58457729; -99.35746518, 29.58149671; -99.35704686, 29.57922857; -99.35590928, 29.57556223; -99.35423408, 29.57205703; -99.35204996, 29.56877292; -99.34939432, 29.56576608; -99.34750037, 29.56405471; -99.35143457, 29.56425823; -99.35576966, 29.56399832; -99.3600288, 29.56324581; -99.36315267, 29.56234122; -99.36719804, 29.56225886; -99.37150423, 29.56175112; -99.37569771, 29.5607562; -99.37779303, 29.56005572; -99.37803049, 29.5623695; -99.378892, 29.56609289; -99.38030214, 29.56968611; -99.38223684, 29.57308765; -99.38466302, 29.5762393; -99.38753921, 29.5790871; -99.39081619, 29.5815823; -99.39443789, 29.58368218; -99.39834232, 29.58535078; -99.40246262, 29.58655954; -99.40672826, 29.58728775; -99.41106988, 29.58752294; -99.41492754, 29.5874581; -99.41679263, 29.58825628; -99.41693098, 29.58831119; -99.41888048, 29.58901975; -99.42017245, 29.58942458; -99.42104538, 29.58966896; -99.42308196, 29.59015575; -99.4245459, 29.59043542; -99.4253236, 29.59055979; -99.42894461, 29.59093076; -99.4304456, 29.59098281; -99.43147613, 29.59099036; -99.43164893, 29.59098978; -99.43271742, 29.59103371; -99.43292671, 29.59103924; -99.43473523, 29.59131002; -99.43530172, 29.59137757; -99.43688321, 29.59152088; -99.439724, 29.59161787; -99.44406002, 29.5913551; -99.44831965, 29.59059979; -99.45242995, 29.58936486; -99.45632053, 29.58767148; -99.4588962, 29.58621681; -99.46030305, 29.58553562; -99.46188435, 29.58478285; -99.46385425, 29.58370803; -99.46436124, 29.58340351; -99.46662248, 29.58189613; -99.46743959, 29.58128486; -99.46886565, 29.58011589; -99.47056648, 29.57853072; -99.47086016, 29.57823171; -99.47231318, 29.5766283;-99.47366485, 29.5749632; -99.4745223, 29.57385253; -99.47543763, 29.57284679; -99.47783715, 29.56967963; -99.47974312, 29.56626574; -99.48112295, 29.56266355; -99.48150888, 29.56127868; -99.48192759, 29.5595639; -99.48217896, 29.55819891; -99.48269886, 29.55602775; -99.48291118, 29.55478566; -99.483142, 29.5524604; -99.48318028, 29.55094053; -99.48308615, 29.54887241; -99.48287361, 29.54709754; -99.48261687, 29.54570049; -99.4819939, 29.54330528; -99.4819245, 29.54308556; -99.48099472, 29.54060176; -99.48053031, 29.53957891; -99.47937926, 29.53742978; -99.48262888, 29.53491667; 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(D) [(C)] Existing CZs may be modified and additional CZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

(2) Restrictions.

(A) Except as provided in this section or §65.87 of this title (relating to Exception), no person within a CZ shall conduct, authorize or cause any activity involving the movement of a susceptible species under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1. Such prohibited activity, includes, but is not limited to transportation, introduction, removal, authorizing the transportation, introduction or removal of, or causing the transportation, introduction or removal of a live susceptible species into, out of, or within a CZ.

(B) If any portion of a deer breeding facility or release site is within a CZ, the entirety of the deer breeding facility or release site is in the CZ.

(C) [(B)] If the department receives an application for a deer breeder permit for a new facility that is to be located within an area designated as a CZ, the department will issue the permit but will not authorize the possession of susceptible species within the facility so long as the CZ designation exists.

(D) [(C)] Deer that escape from a deer breeding facility within a CZ may not be recaptured unless specifically authorized under a hold order or herd plan issued by the Texas Animal Health Commission.

(D) A TC 1 deer breeding facility located in a CZ may release breeder deer to immediately adjoining acreage if the release site and the breeding facility share the same ownership, but may not transfer deer to or from any other location. Breeder deer may not be transferred to or from a TC 2 or TC 3 deer breeding facility located within a CZ.

(E) A TC 1 deer breeding facility located in CZ may:

(i) receive deer from any facility in the state that is authorized to transfer deer; and

(ii) release or transfer breeder deer within the CZ.

(F) A TC 2 deer breeding facility located within a CZ may release breeder deer to immediately adjoining acreage if:

(i) the release site and the breeding facility share the same ownership; and

(ii) each breeder deer released has, within 60 days prior to release, been subjected to a tonsil biopsy test for CWD with a result of "not detected."

(G) A TC 1 deer breeding facility located in a CZ may release breeder deer to immediately adjoining acreage if the release site and the breeding facility share the same ownership, but may not transfer deer to or from any other location. Breeder deer may not be transferred to or from a TC 2 or TC 3 deer breeding facility located within a CZ.

(H) Breeder deer from any deer breeding facility designated as Movement Qualified under the provisions of Division 2 of this subchapter may be released within a CZ; provided:

(i) that if a release occurs during a "hunting year" (as defined in §65.90 of this title (relating to Definitions)), harvest at the release site must be equal to or greater than the number of breeder deer released at that site before the last day of the hunting year, otherwise the harvest and reporting requirements of this subparagraph must be met before the last day of the hunting year immediately following the release; and

(ii) the owner of the release complies with the requirements of §65.93 of this title (relating to Harvest Log).

(iii) A person who fails to comply with the requirements of subparagraph (H) of this paragraph commits an offense and the department shall not authorize the additional release of breeder deer to that release site.

§65.82.Surveillance Zones; Restrictions.

The areas described in paragraph (1) of this section are SZs.

(1) Surveillance Zones.

(A) Surveillance Zone 1: That portion of the state lying within a line beginning where U.S. 285 enters from the State of New Mexico in Reeves County; thence southeast along U.S. 285 to R.M. 652; thence west along R.M. 652 to Rustler Springs Rd./FM 3541 in Culberson County; thence south along Rustler Springs Rd./F.M. 3541 to F.M. 2185; thence south along F.M. 2185 to Nevel Road; thence west along Nevel Road to County Road 501; thence south along County Road 501 to Weatherby Road; thence south along Weatherby Road to F.M. 2185; thence southwest along to F.M. 2185 to S.H. 54; thence south on S.H. 54 to U.S. 90; thence south along U.S. 90 to the Culberson County line; thence southwest along the Culberson County line to the Rio Grande River in Hudspeth County; thence north along the Rio Grande to F.M. 1088; thence northeast along F.M. 1088 to S.H. 20; thence southeast along S.H. 20 to I.H. 10; thence southeast along I.H. 10 to F.M 1111; thence north on F.M. 1111 to U.S. 62/180; thence east and north along U.S. 62/180 to the New Mexico state line in Culberson County.

(B) Surveillance Zone 2. That portion of the state lying within a line beginning at the New Mexico state line where U.S. 60 enters Texas; thence northeast along U.S. 60 to U.S. 87 in Randall County; thence south along U.S. 87 to S.H. 217 in Canyon; thence east along S.H. 217 to F.M. 1541; thence north along F.M. 1541 to Loop 335; thence east and north along Loop 335 to S.H. 136; thence northwest along S.H. 136 to N. Lakeside Dr.; thence north along N. Lakeside Dr. to E. Willow Creek Dr.; thence west along E. Willow Creek Dr. to Denton St.; thence north along Denton St. to E. Cherry; thence west along E. Cherry to N. Eastern St.; thence south along N. Eastern St. to E. Willow Creek Dr.; thence west along E. Willow Creek Dr. to U.S. 87; thence north along U.S. 87 to the City of Dumas; thence along the city limits of Dumas to [thence north along U.S. 87 to I.H. 27; thence north along U.S. 87/I.H. 27] U.S. 287 in Moore County; thence north along U.S. 287 to the Oklahoma state line.

(C) Surveillance Zone 3. That portion of the state not within the CZ described in §65.81(1)(C) of this title (relating to Containment Zones; Restrictions) lying within a line beginning at U.S. 90 in Hondo in Medina County; thence west along U.S. Highway 90 to the Sabinal River [F.M. 187] in Uvalde County; thence north along the Sabinal River to F.M. 187; thence north along F.M. 187 to F.M. 470 in Bandera County; thence east along F.M. 470 to Tarpley in Bandera County; thence south along F.M. 462 to U.S. 90 in Hondo.

(D) Existing SZs may be modified and additional SZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

(2) Restrictions.

(A) Except as provided in §65.87 of this title (relating to Exception) and subparagraph (B) of this paragraph, no person within a SZ may conduct, authorize or cause any activity involving the movement of a susceptible species, into, out of, or within a SZ under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1. Such prohibited activity, includes, but is not limited to transportation, introduction, removal, authorizing the transportation, introduction or removal, or causing the transportation, introduction or removal of a live susceptible species into, out of, or within a SZ.

(B) Breeder Deer.

(i) Except as provided in Division 2 of this subchapter, a breeding facility that is within a SZ and designated as a:

(I) TC 1 breeding facility may:

(-a-) transfer to or receive breeder deer from any other deer breeding facility in this state that is authorized to transfer deer; and

(-b-) transfer breeder deer in this state for purposes of liberation, including to release sites within the SZ.

(II) TC 2 breeding facility:

(-a-) may receive deer from any facility in the state that is authorized to transfer deer;

(-b-) may transfer deer to a breeding facility or release site that is within the same SZ; and

(-c-) is prohibited from transferring deer to any facility outside of the SZ.

(ii) Deer that escape from a breeding facility within a SZ may not be recaptured unless specifically authorized under a hold order or herd plan issued by the Texas Animal Health Commission.

(C) Breeder deer from a deer breeding facility located outside a SZ may be released within a SZ.

(D) [(C)]Permits to Transplant Game Animals and Game Birds (Triple T permit). The department may authorize the release of susceptible species in a SZ under the provisions of a Triple T permit issued by the department under the authority of Parks and Wildlife Code, Chapter 43, Subchapter E and the provisions of Subchapter C of this chapter, but the department will not authorize the trapping of deer within a SZ for purposes of a Triple T permit.

(E) [(D)] Deer Management Permit (DMP). The department may issue a DMP for a facility in a SZ; however, any breeder deer introduced to a DMP facility in a SZ must be released to the property for which the DMP is issued and may not be transferred anywhere for any purpose [to any deer breeding facility].

§65.85.Mandatory Check Stations.

(a) The department may establish mandatory check stations in any CZ or SZ or portion of a CZ or SZ for the purpose of collecting biological information on susceptible species taken within a CZ or SZ.

(b) In a CZ or SZ where mandatory check stations have been established, the intact, unfrozen head of any susceptible species that has been killed must be presented to a designated check station within 48[24] hours of take by the person or representative of the person who killed the susceptible species, unless otherwise authorized in writing by department personnel.

(c) The department will issue documentation for each specimen of a susceptible species that is presented at a check station. The department-issued documentation must remain with the specimen until it reaches the possessor's final destination.

(d) A person who fails or refuses to comply with this section commits an offense.

§65.88.Deer Carcass Movement Restrictions.

(a) Except as provided in this section, no person may:

(1) transport into this state or possess any part of a susceptible species from a state, Canadian province, or other place outside of Texas where CWD has been detected in free-ranging or captive herds; or

(2) transport or cause the transport of any part of a susceptible species from a property within a CZ or SZ.

(b) Subsection (a) of this section does not apply to susceptible species processed in accordance with this subsection, provided the applicable requirements of subsections (c) - (e) of this section have been met:

(1) meat that has been cut up and packaged (boned or filleted);

(2) a carcass that has been reduced to quarters with no brain or spinal tissue present;

(3) a cleaned hide (skull and soft tissue must not be attached or present);

(4) a whole skull (or skull plate) with antlers attached, provided the skull plate has been completely cleaned of all soft tissue;

(5) finished taxidermy products;

(6) cleaned teeth; or

(7) tissue prepared and packaged for delivery to and use by a diagnostic or research laboratory.

(c) For susceptible species harvested in a CZ or SZ, the provisions of subsection (b) of this section are applicable only if the susceptible species is processed within the CZ or SZ where the susceptible species was harvested, except for the transport of an intact head to a designated check station.

(d) A susceptible species harvested in a CZ or SZ and processed in accordance with the provisions of subsections (b) and (c) of this section may be transported from the CZ or SZ, provided it is accompanied by a department-issued check-station receipt, which shall remain with the susceptible species until it reaches a final destination.

(e) The skinned or unskinned head of a susceptible species from a CZ or SZ, other state, Canadian province, or other place outside of Texas may be transported to a taxidermist for taxidermy purposes, provided all brain material, soft tissue, spinal column and any unused portions of the head are disposed of in a landfill in Texas permitted by the Texas Commission on Environmental Quality (TCEQ).

[(f) The provisions of subsections (a)(2) and (b) - (d) of this section do not apply to deer harvested in Surveillance Zone 3 as described in §65.82 of this title (relating to Surveillance Zones; Restrictions).]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 10, 2017.

TRD-201701508

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 389-4775


DIVISION 2. CHRONIC WASTING DISEASE - MOVEMENT OF DEER

31 TAC §65.94

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1, and Chapter 61.

§65.94.Breeding Facility Minimum Movement Qualification.

(a) Notwithstanding any other provision of this division, a breeding facility is designated NMQ and is prohibited from transferring breeder deer anywhere for any purpose if the breeding facility:

(1) has not:

(A) met the provisions of this subparagraph:

(i) had less than five eligible mortalities from May 23, 2006 through March 31, 2016; or

(ii) submitted CWD "not detected" test results for at least 20% of the total number of eligible mortalities that occurred in the facility since May 23, 2006; and

(B) beginning with the report year that starts April 1, 2017, and each April 1 thereafter:

(i) achieved "fifth-year" or "certified" status in the TAHC CWD Herd Certification Program; or

(ii) submitted CWD "not detected" test results for at least 80% of eligible mortalities occurring in the facility during the previous reporting year; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the eligible-aged deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by 3.6 percent;

(2) is not authorized pursuant to a TAHC Herd Plan associated with a TAHC hold order or TAHC quarantine;

(3) does not have a reconciled herd inventory; or

(4) is not in compliance with the reporting and recordkeeping provisions of this division and §65.608 of this title (relating to Annual Reports and Records).

(b) A breeding facility that has been designated as NMQ for failure to comply with the testing requirements specified in subsection (a) of this section will be restored to MQ when the required "not detected" test results prescribed by subsection (a) of this section are submitted.

(c) Notwithstanding a determination on another basis for reduction in status, if by March 31 of any year a breeding facility that has obtained TC 1 status is unable to satisfy the criteria of this subchapter necessary to maintain TC 1 status because tissue samples have been documented by an accredited testing facility as having been received and lost, the facility status will remain unchanged until May 15 of that same calendar year. However, the facility status will be reduced to TC 2 if:

(1) ante-mortem substitution samples necessary to maintain TC 1 status are not submitted to an approved diagnostic laboratory by May 15 of that same calendar year; or

(2) fewer than the required number of "not detected" test results are obtained from the ante-mortem substitute samples submitted to satisfy paragraph (1) of this subsection.

(d) [(c)] A breeding facility designated NMQ shall report all mortalities within the facility to the department immediately upon discovery of the mortality.

(e) [(d)] Immediately upon the notification that a facility has received a CWD "suspect" test result (a CWD suspect facility), all facilities that have been in possession of a deer that was held in the CWD suspect facility within the previous five years shall be designated NMQ by the department until it is determined that the facility is not epidemiologically linked to the CWD suspect deer, or it is determined upon further testing that the "suspect" deer is not a confirmed positive.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 10, 2017.

TRD-201701509

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 389-4775


SUBCHAPTER F. PERMITS FOR AERIAL MANAGEMENT OF WILDLIFE AND EXOTIC SPECIES

31 TAC §65.160

The Texas Parks and Wildlife Department proposes an amendment to §65.160, concerning Landowner Authorization (LOA). The proposed amendment would create a mechanism for expedited approval of a landowner authorization (LOA) to manage wildlife or exotic animals by the use of aircraft (AWM).

Under federal law (16 U.S.C. §742j-1, commonly referred to as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or intentionally harass any bird, fish, or other animal from aircraft except for certain specified reasons, including protection of wildlife, livestock, and human health. Under Parks and Wildlife Code, §43.109, the Parks and Wildlife Commission (Commission) is authorized to promulgate regulations governing the management of wildlife and exotic animals by the use of aircraft.

In 2015 the department adopted revisions to the rules governing aerial wildlife management (41 TexReg 4037), including the elimination of provisions for emergency approval of new LOAs, which the department concluded was no longer necessary because of the transition to an electronic, online permit administration process. The department has since become aware that there may be rare instances in which it is not practical for a permittee to access the department's online system for approval of a LOA; therefore, the proposed amendment would provide a mechanism for expedited approval of a LOA. The proposed amendment would allow a permittee to present a department-approved application for expedited LOA to a game warden assigned to the county where the prospective activity is to take place. The proposed amendment also would require the permittee to complete the normal LOA approval process by accessing the department's online system within 72 hours following conclusion of activities authorized under the expedited LOA.

Mitch Lockwood, Big Game Program Director, 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 proposed rule.

Mr. Lockwood also has determined that for each of the first five years the rule as proposed is in effect:, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be a regulation that allows flexibility to landowners and land managers with respect to certain types of management activities while preserving the effective oversight of persons authorized to manage a public resource and the benefits to public resources occurring as a result of sound management activities.

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 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, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rule as proposed, as the rule does not alter any requirement of current rule. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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.

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

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.

Comments on the proposed rule may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.texas.gov).

The amendment is proposed under Parks and Wildlife Code, §43.109, which provides the commission with authority to make regulations governing the management of wildlife or exotic animals by the use of aircraft under this subchapter, including forms and procedures for permit applications; procedures for the management of wildlife or exotic animals by the use of aircraft; limitations on the time and the place for which a permit is valid; establishment of prohibited acts; and rules to require, limit, or prohibit any activity as necessary to implement Parks and Wildlife Code, Chapter 43, Subchapter G.

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

§65.160.Landowner Authorization (LOA).

(a) - (d) (No change.)

(e) An expedited LOA may be obtained by the prior written approval of a game warden assigned to the county where the prospective management of wildlife or exotic animals is to be performed, or that warden's supervisor, following submission to the game warden (or supervisor) of:

(1) a completed, department-approved application for expedited LOA for the property where the management of wildlife or exotic animals is to be performed; and

(2) a map clearly indicating the boundaries of the property where the management of wildlife or exotic animals is to be performed.

(f) Upon approval by the game warden (or supervisor), the AMP holder may conduct the authorized activities, but must, within 72 hours of completion of the activities authorized under the expedited LOA, complete and submit a LOA application to the department via the department's online system.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 10, 2017.

TRD-201701510

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 389-4775


SUBCHAPTER H. PUBLIC LANDS PROCLAMATION

31 TAC §§65.190, 65.191, 65.193, 65.197, 65.199, 65.204

The Texas Parks and Wildlife Department proposes amendments to §§65.190, 65.191, 65.193, 65.197, 65.199, and 65.204, concerning the Public Lands Proclamation. The proposed amendments are a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

The proposed amendment to §65.190, concerning Application, would add the East Texas Conservation Center, Roger Fawcett Wildlife Management Area (WMA), the Nature Center, and Yoakum Dunes WMA to the list of WMAs and public hunting lands to which the rules apply. All four locations have been recently added to the department's inventory and have been or will be made available for varying forms of public access.

The proposed amendment to §65.191, concerning Definitions, would alter the definitions of "special access permit" and "preference points." Until recently, the department issued a special access permit to authorize access to a specified unit of the state park system for purposes of participation in public hunting opportunity. With the transition to an automated system for drawn public hunts, such a permit is no longer necessary for that purpose. However, the permit is being repurposed to provide for access by a non-hunting person during authorized activities, which is necessary to allow for persons selected for public hunting opportunity to be accompanied by a friend or family member. The proposed amendment also would replace the term "preference points" with the term "loyalty points," which is necessary to more accurately describe the department's process for increasing the probability of selection for public hunting opportunity following unsuccessful attempts.

The proposed amendment to §65.193, concerning Access Permit Required and Fees, would eliminate a reference to a state park that no longer exists, remove subsections (c) - (e) because they duplicate definitions contained in §65.190, eliminate references to "special access permits" because that term is no longer meaningful in the context in which it is used, and standardize references to special permits. The amendment is nonsubstantive and intended to reduce confusion and increase clarity.

The proposed amendment to §65.197, concerning Reinstatement of Preference Points, would retitle the section "Reinstatement of Loyalty Points" and replace the word "preference" with the word "loyalty" for reasons discussed in the proposed amendment to §65.190. The proposed amendment also would eliminate paragraph (2), which provides for the reinstatement of loyalty points if the selected applicant was assigned a hunt category, hunt area, or hunt period other than what was indicated on the application and does not participate in the hunt. Prior to implementation of an automated system for entering public hunt drawings, the entry, selection, and notification processes were manual and the occasional human error occurred during processing, resulting in the inadvertent assignment to applicants of hunts other than those for which the person applied. With the automated system, however, the only way for an applicant to be erroneously assigned a hunt opportunity is for the applicant to have applied for the wrong hunt; thus, the mistake is on the applicant's part. Therefore, it is no longer necessary for the department to provide for reinstatement of loyalty points in such situations, since the error is not on the department's part. The proposed amendment also would create an exception for persons who have paid the appropriate fee and were prevented from participating in the scheduled hunt because of military deployment. The department believes that the obligations of military service are an appropriate reason for reinstating loyalty points.

The proposed amendment to §65.199, concerning General Rules of Conduct, would remove references in subsection (d) to a defunct department publication entitled "Applications for Drawings on Public Hunting Lands." With the implementation of the new online system for application, the department has ceased to print hard copy booklets; however, the possibility remains that unforeseen developments such as natural events (drought, hurricane, flood, etc.) could make it necessary to cancel/re-schedule/alter hunting opportunities. Additionally, the proposed amendment would allow for the provision of hunting opportunity involving dogs following the issuance of an executive order published on the department's website.

The proposed amendment to §65.204, concerning Recreational Use of Wildlife Management Areas, would clarify that the provisions of the subchapter apply on public hunting lands as well as wildlife management areas.

Justin Dreibelbis, Director of the Private Lands and Public Hunting Program, 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 or local governments as a result of administering or enforcing the proposed amendments.

Mr. Dreibelbis also has determined that for each of the first five years that the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rules will be clearer, better organized, and more accurate regulations governing the processes and entities administered under the provisions of Chapter 65, Subchapter H.

There will be no adverse economic effect on persons required to comply with the rules as proposed.

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 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 will not directly affect small businesses and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

The department has not drafted a local employment impact statement under the Administrative Procedure Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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.

Comments on the proposed rule may be submitted to Robert Macdonald, Regulations Coordinator, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

The amendments are proposed under the authority of Parks and Wildlife Code, §81.006, which prohibits the take, attempted take, or possession of any wildlife or fish from a wildlife management area except in the manner and during the times permitted by the department under Chapter 81, Subchapter E, and under Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to establish an open season on wildlife management areas and public hunting lands, authorizes the executive director to regulate numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas and public hunting lands, and authorizes the commission to adopt rules governing recreational activities in wildlife management areas.

The proposed amendments affect Parks and Wildlife Code, Chapter 81.

§65.190.Application.

(a) - (d) (No change.)

(e) Public hunting lands include, but are not limited to, the following:

(1) - (19) (No change.)

(20) East Texas Conservation Center (Unit 780);

(21) Elephant Mountain WMA (Unit 725);

(22) [(21)] Gene Howe WMA (Unit 755)--includes Pat Murphy Unit (Unit 706);

(23) [(22)] Granger (Unit 709);

(24) [(23)] Guadalupe Delta WMA (Unit 729)--includes Mission Lake Unit (720), Guadalupe River Unit (723), Hynes Bay Unit (724), and San Antonio River Unit (760);

(25) [(24)] Gus Engeling WMA (Unit 754);

(26) [(25)] James Daughtrey WMA (Unit 713);

(27) [(26)] J.D. Murphree WMA (Unit 783);

(28) [(27)] Justin Hurst WMA (Unit 721);

(29) [(28)] Keechi Creek WMA (Unit 726);

(30) [(29)] Kerr WMA (Unit 756);

(31) [(30)] Lake McClellan Recreation Area (Unit 906);

(32) [(31)] Lower Neches WMA (Unit 728)--includes Old River Unit and Nelda Stark Unit;

(33) [(32)] Mad Island WMA (Unit 729);

(34) [(33)] Mason Mountain WMA (Unit 749);

(35) [(34)] Matador WMA (Unit 702);

(36) [(35)] Matagorda Island WMA (Unit 722);

(37) [(36)] McGillvray and Leona McKie Muse WMA (Unit 750);

(38) [(37)] M.O. Neasloney WMA;

(39) [(38)] Moore Plantation WMA (Unit 902);

(40) [(39)] Nannie Stringfellow WMA (Unit 716);

(41) [(40)] North Toledo Bend WMA (Unit 615);

(42) [(41)] Old Sabine Bottom WMA (Unit 732);

(43) [(42)] Pat Mayse WMA (Unit 705);

(44) [(43)] Ray Roberts (Unit 501);

(45) [(44)] Redhead Pond WMA;

(46) [(45)] Richland Creek WMA (Unit 703);

(47) Roger Fawcett WMA (Unit 781);

(48) [(46)] Sam Houston National Forest WMA (Unit 905);

(49) [(47)] Sierra Diablo WMA (Unit 767);

(50) [(48)] Somerville (Unit 711);

(51) [(49)] Tawakoni WMA (Unit 708);

(52) The Nature Center (Unit 021);

(53) [(50)] Welder Flats WMA;

(54) [(51)] White Oak Creek WMA (Unit 727); [and]

(55) Yoakum Dunes WMA (Unit 752); and

(56) [(52)] Other numbered units of public hunting lands.

§65.191.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 in §65.3 of this title (relating to Statewide Hunting and Fishing Proclamation).

(1) - (32) (No change.)

(33) Loyalty [Preference] point system--A method of special permit distribution in which the probability of selection is progressively enhanced by prior unsuccessful applications within a given hunt category by individuals or groups.

(34) - (41) (No change.)

(42) Special Access Permit--A department-issued permit that allows access to a non-hunting person on public lands during authorized activities. [A permit, issued pursuant to a selection procedure, that allows access to a specified unit of the state park system at a specified time.]

(43) - (49) (No change.)

§65.193.Access Permit Required and Fees.

(a) (No change.)

(b) Annual Public Hunting (APH) Permit and Limited Public Use (LPU) Permit.

(1) - (3) (No change.)

(4) The permits required under paragraphs (1) - (3) of this subsection are not required for:

(A) (No change.)

(B) persons who enter and hunt waterfowl within the Bayside Marsh Unit of Matagorda Island [State Park and] Wildlife Management Area; or

(C) (No change.)

(5) - (6) (No change.)

[(c) Regular Permit--A regular permit is issued on a first come-first served basis at the hunt area on the day of the scheduled hunt with the department reserving the right to limit the number of regular permits to be issued.]

[(d) Special Permit--A special permit is issued to an applicant selected in a drawing.]

[(e) Special Access Permit - A special access permit is issued to an applicant selected in a drawing.]

(c) [(f)] Mentored Hunting Permit--Permits issued under this subsection shall be available on a first-come, first-served basis for use on designated units of public hunting lands at designated times. A person may participate in a designated hunt under a mentored hunting permit only if the person has completed the mandatory mentored hunter workshop and has been authorized by the department to participate in hunt activities. A person who participates in a mentored hunt under a mentored hunting permit must be accompanied by a designated mentor.

(d) [(g)] Permits for hunting wildlife resources on public hunting lands shall be issued by the department to applicants by means of a fair method of distribution subject to limitations on the maximum number of permits to be issued.

(e) [(h)] The department may implement a system of issuing special permits [or special access permits] that gives preference to those applicants who have applied previously but were not selected to receive a permit.

(f) [(i)] Application fees.

(1) The department may charge a non-refundable fee, which may be required to accompany and validate an individual's application in a drawing for a special [hunting] permit [or special access permit].

(2) The application fee for a special [hunting] permit [or special access permit] is waived for a person under 17 years of age; however, the youth must apply in conjunction with an authorized supervising adult to whom an application fee is assessed, except as provided in paragraphs (3) and (4) of this subsection.

(3) The application fee for a special permit [or special access permit] is waived for an adult who is making application to serve as a non-hunting authorized supervising adult for a youth in a youth-only drawn hunt category.

(4) Persons under 17 years of age may be disqualified from applying for special package hunts or may be assessed the application fee.

(5) The application fee for a special permit [or special access permit] is waived for on-site applications made under standby procedures at the time of a hunt.

(6) Incomplete or incorrectly completed applications will be disqualified.

(g) [(j)] Legal animals to be taken by special or regular permit shall be stipulated on the permit.

(h) [(k)] Only one special[, special access,] or regular permit fee will be assessed in the event of concurrent hunts for multiple species, and the fee for the legal species having the most expensive permit will prevail.

(i) [(l)] Any applicable special[, special access,] or regular permit fees will be waived for youth under the supervision of a duly permitted authorized supervising adult.

(j) [(m)] Any applicable regular permit fees will be waived for persons possessing an APH permit.

(k) [(n)] Certain hunts may be conducted totally or in part by regular permit. It is an offense to fail to comply with established permit requirements specifying whether a regular permit is required of all participants or required only of adult participants who do not possess an APH permit.

(l) [(o)] Any applicable regular permit fees for authorized activities other than hunting or fishing will be waived for persons possessing an APH permit or an LPU permit.

(m) [(p)] An access permit applies only to the individual to whom the permit is issued, and neither the permit nor the rights granted thereunder are transferable to another person.

(n) [(q)] A person who fails to obey the conditions of a permit issued under this subchapter commits an offense.

§65.197.Reinstatement of Loyalty [Preference] Points.

Accrued loyalty [preference] points will be reinstated in the concerned hunt category for a selected applicant only if:

(1) payment of hunt permit fees has been made, but the scheduled hunt is unable to be conducted in its entirety or is canceled at the discretion of the department; or

(2) payment of hunt permit fees has been made, but participation in the scheduled hunt is not possible due to deployment as a result of service in the armed forces of the United States. [the selected applicant was assigned a hunt category, hunt area, orhunt period other than was indicated on the application and does not participate in the hunt.]

§65.199.General Rules of Conduct.

(a) - (c) (No change.)

(d) Hunting with Dogs.

(1) Dogs may be possessed and used to hunt animals and birds on public hunting lands only as provided:

(A) in the "Legal Game Legend" provided for each unit of public hunting lands in the department publication entitled "Map Booklet for Public Hunting Lands;" or

(B) by executive order published on the department's official website. [in the case of drawn hunts, in the department publication entitled "Applications for Drawings on Public Hunting Lands."]

(2) It is an offense for any person to use a dog to hunt a bird or animal on public hunting lands except as authorized:

(A) in the "Legal Game Legend" provided for each unit of public hunting lands in the department publication entitled "Map Booklet for Public Hunting Lands" or

(B) by executive order published on the department's official website. [in the "Applications for Drawings on Public Hunting Lands."]

§65.204.Recreational Use of Wildlife Management Areas.

(a) Hunting is allowed on wildlife management areas and public hunting lands only as provided in this subchapter.

(b) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 10, 2017.

TRD-201701512

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 389-4775


SUBCHAPTER P. ALLIGATOR PROCLAMATION

31 TAC §65.361

The Texas Parks and Wildlife Department proposes an amendment to §65.361, concerning Alligator Farm Facility Requirements. The proposed amendment would alter subsection (a)(4) to eliminate the requirement to provide dry ground sufficient to permit alligators to completely exit from the water. Alligator farming is a commercial enterprise that produces meat and hides, much like cattle ranching, and provides a conservation benefit by minimizing impact to wild populations. With respect to hide sales, the most important criterion is hide quality. The department has determined that the current rule requiring the provision of dry ground causes territorial confrontations between alligators, which in turn results in the degradation of hide quality, making Texas alligators less marketable. The department believes that skin quality is an indicator of good husbandry, and that reducing animal conflicts will produce a more humane environment for farmed alligators, which will also result in more marketable hides.

Mitch Lockwood, Big Game Program Director, 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 and local governments as a result of enforcing or administering the rule.

Mr. Lockwood has also determined that for each of the first five years the rule as proposed is in effect the public benefit anticipated as a result of enforcing or administering the rule as proposed will be the increased marketability of hides by Texas alligator farmers.

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 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, commission 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 most if not all businesses affected by the proposed rule qualify as small or microbusinesses. The department also has determined that there will be no adverse economic effects on small businesses, microbusinesses, and persons required to comply with the amendment as proposed, and, if anything, any fiscal impacts will be positive, since the proposed amendment is expected to result in the increased marketability of alligator hides. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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.

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

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.

The department has determined that the proposed rule is in compliance with Government Code, §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4363 (e-mail: mitch.lockwood@tpwd.texas.gov) or on the department's website at www.tpwd.texas.gov.

The amendment is proposed under the authority of Parks and Wildlife Code, §65.003, which authorizes the commission to regulate taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of alligators, alligator eggs, or any part of an alligator that the commission considers necessary to manage this species, including regulations to provide for the periods of time when it is lawful to take, possess, sell, or purchase alligators, alligator hides, alligator eggs, or any part of an alligator; and limits, size, means, methods, and places in which it is lawful to take or possess alligators, alligator hides, alligator eggs, or any part of an alligator; and control of nuisance alligators.

The proposed amendment affects Parks and Wildlife Code, Chapter 65.

§65.361.Alligator Farm Facility Requirements.

(a) A first-time applicant for an alligator farmer's permit must, prior to permit issuance, show evidence of the following during a facility inspection by the department:

(1) adequate barriers to prevent escape or entry by alligators;

(2) a reliable source of clean, fresh water;

(3) provision for protection from the cold, either available denning space or an enclosed, controlled-temperature environment;

(4) pooled water sufficient to allow complete submersion of alligators [and dry ground sufficient to permit alligators to completely exit from the water].

(b) - (i) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 10, 2017.

TRD-201701511

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 21, 2017

For further information, please call: (512) 389-4775