Presenter: Jerry Cooke

Commission Agenda Item No. 7
Action
Scientific Breeder Proclamation
January 1998

I. DISCUSSION: Under Parks and Wildlife Code, Chapter 43, Subchapter L, the Commission is authorized to promulgate regulations governing the possession of white-tailed deer and mule deer for scientific, management, and propagation purposes. The passage of House bill 2541 by the Seventy-fifth Texas Legislature amended Subchapter L and necessitates rulemaking by the department to conform existing regulations with the intent of the Legislature. The proposed regulations located at Exhibit A would: synchronize the period of validity of scientific breeder permits by setting a universal expiration date; standardize the tagging requirements for captive deer; allow the recapture of escaped deer; provide procedures and requirements for the transportation of deer immediately before and during an open deer season; stipulate that all deer entering the state for the purposes of Subchapter L be tested as required by the Texas Animal Health Commission; and effect housekeeping changes in the interest of clarity. At the November 1997, meeting of the Regulations Committee, staff was given permission to publish the proposed Scientific Breeder Proclamation in the Texas Register for public comment. The proposed Scientific Breeder Proclamation was published in the December 19, 1997, issue of the Texas Register (22 TexReg 12432). Staff has received, analyzed, and responded to public comment on the proposed Scientific Breeder proclamation, and a synopsis will be available at the time of the hearing.

II. RECOMMENDATION: The staff recommends the Parks and Wildlife Commission adopt the following two motion:

"The Texas Parks and Wildlife Commission adopts the proposed repeal of 31 TAC §65.604 and §65.606, and amendments to §§65.601-65.603, 65.605, and 65.607-65.611, concerning scientific breeders, with changes to the proposed text as published in the December 19, 1997, issue of the Texas Register (22 TexReg 12432)."

Attachments - 2

1. Exhibit A - Proposed Scientific Breeder Proclamation
2. Exhibit B - Fiscal Note

(Exhibit B is available upon request.)


Commission Agenda Item No. 7
Exhibit A

Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §65.604 and §65.606, and amendments to §§65.601-65.603, 65.605, and 65.607-65.611, concerning scientific breeders. The amendments are necessary to implement statutory provisions enacted by the 75th Texas Legislature in House Bill 2541. The amendments will function to synchronize the period of validity of scientific breeder permits by setting a universal expiration date; standardize the tagging requirements for captive deer; allow for the recapture of escaped deer; provide procedures and requirements for the transportation of deer immediately before and during an open deer season; stipulate that all deer entering the state for the purposes of Subchapter L be tested as required by the Texas Animal Health Commission; and effect housekeeping changes in the interest of clarity.

2. Fiscal Note.

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

3. Public Benefit - Cost Note.

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

(A) The public benefit anticipated as a result of enforcing the amendments as proposed will be the conformance of the department's regulations to statutory law.

(B) There will be no effect on small businesses. There is no additional economic cost to persons required to comply with the amendments as proposed.

(C) The department has not filed a local impact statement with the Texas Employment Commission as required by Government Code, §2001.022, as this agency has determined that the amendments as proposed will not impact local economies.

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

4. Request for Public Comments.

Comments on the proposed amendments may be submitted to Jerry Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4774 or 1-800-792-4410.

5. Statutory Authority.

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

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

SCIENTIFIC BREEDER PROCLAMATION

§65.601. Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned by Parks and Wildlife Code.

[Adult deer - Any deer held in captivity on January 1 following birth.]

[Captivity - The keeping of an animal in an enclosure suitable for and capable of retaining the animal it is designed to retain at all times under reasonable and ordinary circumstances and to prevent entry by another animal, Texas Parks and Wildlife Code, §43.351(2).]

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

(A) has been awarded a bachelor's [fulfilled the scholastic requirements of an accredited university or college for the B.S.] degree or higher [(or an advanced degree) with major course work] in wildlife science, [or] wildlife management, or a related educational field; and

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

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

Deer - White-tailed deer of the species Odocoileus virginianus or mule deer of the species Odocoileus hemonius.

[Department - The Texas Parks and Wildlife Department or any authorized employee thereof.]

Designated agent - An individual, identified on an application for a scientific breeder's permit, who is authorized by the permittee to conduct activities on behalf of the permittee.

[Director - The Executive Director of the Texas Parks and Wildlife Department.]

[Enclosure - An area of not more than 320 acres that is completely surrounded by department-approved fencing for the purposes of reducing deer to a state of captivity.]

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

Fawn - Any deer with a spotted coat.

[Management - The application of scientifically tested techniques to manipulate captive deer herds in a manner that they manifest desired attributes that can be applied to free-ranging deer herds.]

Propagation - The holding of captive [white-tailed deer or mule] deer for reproductive purposes [the purpose of increasing their numbers].

[Purchase Permit - A permit required of all persons to purchase or accept a live white-tailed deer or mule deer in this state.]

Sale - The transfer of possession of deer for consideration and includes a barter and an even exchange.

Scientific - The accumulation of knowledge, by systematic methods, about the physiology, nutrition, genetics, reproduction, mortality and other biological factors affecting [white-tailed deer or mule] deer.

[Scientific Breeder - A person holding a valid scientific breeder's permit issued by the department, Texas Parks and Wildlife Code, §43.351(1).]

Serial Number - A permanent number assigned to the scientific breeder by the department.

[Transport Permit - A permit required for the transport or shipment of a live white-tailed deer or mule deer by any person except a scientific breeder or his designated agent.]

Unique number - a four-digit alphanumeric identifier issued by the department to a scientific breeder for the purpose of permanently marking a deer such that the animal’s history of ownership can be tracked.

§65.602. Permit Requirement and Permit Privileges.

(a) No person may possess a live deer in this state unless that person possesses a valid [A person who possesses or seeks to possess deer for scientific, propagation or management purposes must hold, prior to possession of any deer, a valid scientific breeder's] permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R [, unless that person possesses a valid permit issued under the provisions of §§57.271-57.284 of this title (relating to Scientific, Educational, and Zoological Permits) or Chapter 65, Subchapter C of this title (relating to Permits for the Trapping, Transporting, and Transplanting of Game Animals and Game Birds)].

(b) A person who possesses a valid scientific breeder's permit may:

(1) possess deer within the permitted facility for the purpose of propagation [engage in the business of breeding deer within the facility for which the permit was issued];

(2) engage in the business of breeding legally possessed deer within the facility for which the permit was issued; [possess deer within the permitted facility for the purpose of propagation; and]

(3) sell deer that are in the legal possession of the permittee; [and]

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

(5) recapture lawfully possessed deer that have been marked in accordance §65.607 of this title (relating to Marking of Deer) that have escaped from a permitted facility [onto property owned by the permit holder]

§65.603. Application and Permit Issuance.

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

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

(2) a breeding [management] plan which identifies:

(A) the activities proposed to be conducted; and

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

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

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

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

(C) the facility identified in the application is adequate to conduct the proposed activities;

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

(5) the application processing fee specified in §53.8 [§65.604] of this title (relating to (Miscellaneous Wildlife Licenses and Permits [Fees]); and

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

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

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

(2) [the facility has been inspected and approved as specified in §65.606 of this title (relating to Inspections); and]

[(3)] the department has received the fee as specified in §53.8 [§65.604] of this title (relating to (Miscellaneous Wildlife Licenses and Permits [Fees]).

(c) A scientific breeder's permit shall be valid from the date of issuance until the immediately following March 31. Permit and renewal fees for permits issued prior to March 31, 1998 shall be pro-rated, if necessary. [for a period of one year from the date of issuance, unless suspended or revoked by the director in accordance with the provisions of Parks and Wildlife Code, §§12.501-12.507].

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

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

(2) has submitted a notarized application and associated materials required by this section;

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

(4) has paid the permit renewal fee as specified in §53.8 [§65.604] of this title (relating to (Miscellaneous Wildlife Licenses and Permits [Fees]).

(e) The department may, at its discretion, refuse to issue a permit or permit renewal to any person finally convicted of any violation of Parks and Wildlife Code, Chapter 43.

[§65.604. Fees.

[(a) The application processing fee for a scientific breeder's permit or renewal of the permit is $150.

[(b) The application processing fee for a purchase permit is $25.

[(c) The application processing fee for a transport permit is $25.

[(d) Application processing fees are not refundable.]

§65.605. Holding Facility Standards and Care of Deer.

(a) [A scientific breeder shall provide and maintain the following facility standards during the permit period.

[(1) At any time that an enclosure is used to hold deer in captivity, the enclosure shall meet the following space requirements:

[(A) a minimum of 400 square feet per adult deer;

[(B) a minimum of 400 square feet for each adult doe with fawn(s); and

[(C) a minimum of 200 square feet for each fawn segregated from its dam.

[(2) Each enclosure, when deer are present, shall be provided with:

[(A) a prepared commercial deer ration of not less than 12% protein at a daily rate of not less than 2½ pounds per deer when comparable natural forage is not immediately available within that enclosure in quantity to maintain deer in a healthy condition; and

[(B) sufficient fresh, clean water at all times.

[(3) Each enclosure where deer are held shall include a single area of continuous shade measuring at least 20 square feet per deer.]

[(4)] The entire perimeter fence of a facility shall be no less than seven feet in height, and shall be constructed of department-approved net mesh, chain link or welded wire that will retain deer. An indoor facility is acceptable if it meets the standards described in this section and provides permanent access to an outdoor environment that is sufficient for keeping the deer in captivity.

(b) A permittee shall notify the department immediately upon discovering the escape of deer from a facility. Such notice shall be made on a form provided by the department and shall be notarized. The permittee shall have 10 days from the date of such report to capture only those deer that are marked in accordance with §65.607 of this title (relating to Marking of Deer). All recaptured deer must be returned to the facility from which the deer escaped. If after 10 days the permittee is unable to capture escaped deer that have been reported in accordance with this subsection, the department may grant an additional five-day period for capture efforts to continue, contingent upon the permittee proving to the department’s satisfaction that reasonable efforts were made to effect the capture during the first 10-day period. [The permittee shall insure that medical treatment will be provided, when appropriate, to maintain the health of deer held under the provisions of this subchapter.]

(c) A scientific breeder may move fawns from a permitted facility to another location for nursing purposes, provided:

(1) the nursery is located on the same tract of land as the permitted breeding facility;

(2) the scientific breeder requests and receives written authorization from the department to establish a designated location for nursing purposes; and

(3) all fawns in such a nursery are marked in accordance with §65.607(a) of this title (relating to Marking of Deer).

[§65.606. Inspections.]

[(a) The department may inspect the facilities of an applicant for or holder of a scientific breeder's permit at any reasonable time to ensure compliance with the standards specified in §65.605 of this title (relating to Holding Facility Standards and Care of Deer).

[(b) Each new facility or addition to an existing facility must be inspected prior to the placement of deer in that facility or addition. Temporary holding facilities in compliance with the provisions of §65.609(f) of this title (relating to Purchase of Deer and Purchase Permit) are exempt from the requirements of this subsection.

[(c) The department shall notify the applicant for or holder of a scientific breeder's permit of all deficiencies reported as a result of department inspections.

[(d) A scientific breeder's permit shall not be issued or renewed until deficiencies have been corrected.

[(e) When deficiencies exist, an applicant for a scientific breeder's permit may:

[(1) correct the deficiencies and request that the department reinspect the facility; or

[(2) withdraw the application.

[(f) A scientific breeder whose facilities are found to be deficient shall:

[(1) correct the deficiencies within 30 days of notification by the department; or

[(2) relinquish the permit and dispose of the deer as prescribed by §65.612 of this title (relating to Disposition of Deer).]

§65.607. Marking of Deer.

(a) Each deer held in captivity by a permittee shall be permanently marked by:

(1) a unique number tattooed in one ear; and

(2) an ear tag that shows the letters "TX" followed by the serial number assigned to the scientific breeder [for positive identification as prescribed in this section].

[(1) Each deer shall have a tag attached to the ear as prescribed by Texas Parks and Wildlife Code, §43.356(b); and

[(2) Each deer shall be permanently freeze-branded on the left hip with a 2" by 4" brand showing the letters "TX" together, or shall be tattooed in one ear with the serial number assigned to the scientific breeder.]

(b)[(3)] Fawns must be permanently marked by the first November [October] 1 following birth.

(c) All deer held in a scientific breeder facility prior to the effective date of this section must be marked upon first handling or prior to leaving the facility, whichever occurs first.

§65.608. Annual Reports and Records.

(a) Each scientific breeder shall file a completed [an] annual report on a form supplied or approved by the department by not later than April 16 of each year. [15 days following permit expiration on a form provided by the department. The report shall cover the 12-month period of validity for the permit and account for the disposition of all deer by providing the following information:

[(1) the number of deer possessed at beginning of report period;

[(2) the number of deer sold or transferred and the name and address of each purchaser and/or recipient of each deer;

[(3) the number of deer purchased and the name and address of person(s) from whom the deer were purchased;

[(4) the number of fawns born during the reporting period;

[(5) the number of deer that died and the cause of each mortality;

[(6) the number of deer released into the wild and location of each release; and

[(7) the number of deer possessed at the end of the reporting period.]

(b) [The annual report shall also indicate the results of any scientific research conducted authorized under the permit during the permit year.]

[(c)] The holder of a scientific breeder's permit shall maintain and, on request, provide to the department adequate documentation as to the source or origin of all deer held in captivity.

§65.609. Purchase of Deer and Purchase Permit.

(a) Deer may be purchased or obtained for:

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

(2) liberation for stocking purposes.

(b) Deer may be purchased or obtained only from:

(1) a holder of a valid scientific breeder's permit; or

(2) a lawful out-of-state source.

(c) An individual may possess or obtain deer only after a purchase permit has been issued by the department. Purchase permits shall be valid [effective] for 30 [90] days from the date that the scientific breeder has:

(1) completed, dated, signed, and faxed the permit to the Law Enforcement Communications Center in Austin;

(2) received and possesses on their person a return fax from the department in acknowledgment of the fax required by paragraph (1) of this subsection [of issuance and shall expire upon use].

(d) A purchase permit is valid only during the period of validity of a scientific breeder’s permit, is effective for only one transaction, and expires after one instance of use.

(e)[(d)] A one-time, 30-day [90-day] extension of effectiveness for a purchase permit may be obtained by notifying the department prior to the original expiration date of the purchase permit.

(f) If a scientific breeder transports deer to another scientific breeder during any open season for deer or during the period beginning 10 days immediately prior to an open season for deer, the scientific breeder shall, as part of the notification requirement of subsection (c) of this section, include on the purchase permit faxed to the department the unique number of each deer being transported.

(g)[(e)] The department may issue a purchase permit for liberation for stocking purposes if the department determines that[:

[(1)] the release of deer will not detrimentally affect existing populations or systems[; and

[(2) the release is in accordance with the provisions of the department's stocking policy, §§52.101, 52.105, 52.201, 52.202, 52.301 and 52.401 of this title (relating to Stocking Policy)].

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

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

(2) when specifically authorized by the department;

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

(4) [if the deer are maintained as set forth in §65.605(a)(1)-(4) of this title (relating to Holding Facility Standards and Care of Deer);]

[(5)] if the deer are not hunted prior to liberation; and

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

§65.610. Transport of Deer and Transport Permit.

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

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

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

(3) to and from an accredited veterinarian for the purpose of obtaining medical attention.

(b) The department may issue a transport permit to an individual who does not possess a scientific breeder's permit if the individual is transporting deer for liberation purposes and the deer were legally purchased or obtained from:

(1) a scientific breeder; or

(2) a lawful out-of-state source.

(c) All deer entering the boundaries of this state shall:

(1) be accompanied by a certificate of health, signed by an accredited veterinarian, which bears the purchaser's name and address, specifies the destination of the deer, and certifies that the deer:

(A) have been inspected by the veterinarian named on the certificate within 10 days prior to the time of transport;

(B) are free of external parasites; [and]

(C) are free of evidence of contagious and communicable diseases; and

(D) have been tested in accordance with any applicable regulations of the Texas Animal Health Commission; and

(2) be accompanied by a permit or document from the government agency authorizing the exportation of the deer from the state or country of origin, if such permit or document was required as a condition for export from the state or country of origin.

(d) Deer may not be transported for the purposes of this subchapter during any open season for deer or during the period beginning 10 days immediately prior to an open season for deer unless the scientific breeder notifies the department by contacting the Law Enforcement Communications Center in Austin no less than 24 hours before actual transport occurs.[:

[(1) the antlers of any male deer have been removed immediately above the pedicel];

[(2) the game warden in the county of origin of the deer, if the county of origin is within the state of Texas, and the game warden in the county of the destination of the deer, if the county is within the state of Texas, have been notified in writing; and

[(3) written permission has been granted by the game wardens in both the origin and destination counties, if such counties are within the state of Texas, and such written permission is carried with the deer during transportation.]

(e) Transport permits shall be effective for 30 [90] days from the date that the scientific breeder has:

(1) completed, dated, signed, and faxed the permit to the Law Enforcement Communications Center in Austin; and

(2) received and possesses on their person a return fax from the department in acknowledgment of the fax required by paragraph (1) of this subsection [of issuance and shall expire upon use].

(f) A transport permit is valid only during the period of validity of a scientific breeder’s permit, is effective for only one transaction, and expires after one instance of use.

(g)[(f)] A one-time, 30-day [90-day] extension of effectiveness for a transport permit may be obtained by notifying the department prior to the original expiration date of the transport permit.

§65.611. Prohibited Acts.

(a) Deer obtained from the wild under the authority of a permit or letter of authority issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, [or] E, or R shall not be commingled with deer held in a permitted scientific breeder facility [under a scientific breeder's permit].

(b) A person commits an offense if that person places or holds deer in captivity at any place or on any property other than property for which a scientific breeder's permit, or a permit authorized under other provisions of this title or Parks and Wildlife Code, is issued, except that a permittee may transport and temporarily hold deer at a veterinary facility for treatment.

(c) No live deer taken from the wild may be possessed under a scientific breeder's permit or held in a scientific breeder's facility.

(d) No deer shall be held in a trailer or other vehicle of any type except for the purpose of immediate transportation from one location to another.

(e) Possession of a scientific breeder's permit is not a defense to prosecution under any statute prohibiting abuse of animals.

(f) No scientific breeder shall hunt or kill, or allow the hunting or killing of deer held pursuant to this subchapter.

(g) No scientific breeder shall exceed the number of deer allowable for the permitted facility, as specified by the department on the scientific breeder's permit.

§65.612. Disposition of Deer.

(a) Upon termination, suspension, or revocation of a scientific breeder's permit, the permittee shall dispose of all deer covered by the permit.

(b) Deer may be disposed of by sale or donation to another scientific breeder, by sale or donation to a holder of a zoological permit, or by release to the wild as specifically authorized by the department.

(c) Deer still in possession 30 days following termination, revocation, or suspension of a permit shall be disposed of at the discretion of the Department.

(d) Disposition of all deer shall be at the expense of the permittee.

§65.613. Penalties. A person who violates the provisions of this subchapter, a condition of a permit issued under the provisions of this subchapter or violates any provision of Parks and Wildlife Code, Chapter 43, Subchapter L commits an offense punishable by the penalty prescribed by Parks and Wildlife Code, §43.367.

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

Issued in Austin, Texas on

William D. Harvey, Ph.D.
Regulatory Coordinator
Texas Parks and Wildlife Department
1-800-792-1112, extension 4642 or 512-389-4642


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