Presenter: Jerry Cooke

Commission Agenda Item No. 4
Action
Cervid Disease – Scientific Breeder Regulations
April 2002

I. Discussion: The high visibility of Chronic Wasting Disease (CWD), Tuberculosis (TB) etc. in the news media has led to an increasing public awareness of the potential threats to the wild deer resources in Texas. Recent actions by Texas Animal Health Commission (TAHC) in prohibiting the importation of elk, white-tailed deer, mule deer, and black-tailed deer from the States of Colorado and Nebraska, and the loss of Texas’ TB-Free status highlight the importance of cervid diseases to livestock raisers in Texas. Because the Parks and Wildlife Commission (PWC) regulates possession of white-tailed deer (WTD) and mule deer (MD) held under Scientific Breeder Permits including purchase permits and transport permits, there are rules that can be adopted by PWC to assist TAHC in their efforts. The proposal under consideration will defined “in a healthy condition” within the context of TAHC monitoring/testing programs and restrict sale, transportation, temporary transfer, and liberation to only those deer from facilities meeting that definition. Also, the proposal includes a suspension of importation of WTD and MD.

II. Recommendation: Staff recommends that the Texas Parks and Wildlife Commission adopt the following motions:

“The Texas Parks and Wildlife Commission adopts 31 TAC §§ 65.601 and 65.609-65.611, concerning cervid diseases in the Scientific Breeder Proclamation, with changes to the proposed text as published in the March 1, 2002 issue of the Texas Register (27 TexReg 1463).”

Attachments – 2

  1. Exhibit A - Proposed 2003-2004 State Park Hunts
  2. Exhibit B - Fiscal Note (Available upon request)

Commission Agenda Item No. 4
Exhibit A

Scientific Breeder Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.601 and 65.609 - 65.611, concerning Scientific Breeder's Permits. The emergence of tuberculosis (TB) and chronic wasting disease (CWD) in both captive and free-ranging deer populations in other states is cause for concern due to the potential threat to wild deer and livestock populations in Texas. The Texas Animal Health Commission (TAHC), which is charged with controlling disease threats to domestic livestock, recently prohibited the importation of white-tailed deer, mule deer, black-tailed deer, and elk into the state of Texas from Colorado in response to the presence of free-ranging CWD in Colorado herds. Free-ranging CWD also has been detected in populations in Nebraska and Wyoming, and is known to have occurred in captive herds in Montana, South Dakota, Oklahoma, Kansas, and Nebraska.

The biological and epidemiological nature of CWD is not well understood and has not been extensively studied, but it is known to be communicable, incurable, and invariably fatal. At the current time, there is no live test for CWD; animals suspected of having CWD must be euthanized in order to obtain brain tissue for definitive diagnosis.

Tuberculosis, though well understood, is difficult to eradicate in free-ranging populations. Currently the state of Michigan is involved in a very expensive, extremely time-consuming effort to control TB in free-ranging deer. Consequently, TAHC requires that animals coming from Michigan to Texas must originate from a certified TB-free facility. Additionally TAHC requires TB testing for any animal that comes into Texas from any state, except for properties that have a TB-free status.

Texas Parks and Wildlife regulates the importation of white-tailed and mule deer under the provisions of Scientific Breeder Permit regulations. Currently, the rules require all deer entering the state to be accompanied by a veterinarian’s statement that the animals are free of evidence of contagious and communicable diseases, and further require all imported animals to have been tested in accordance with any applicable regulations of the Texas Animal Health Commission. The current rules, though helpful, do not adequately address several potential problems. The first of these concerns CWD. Because CWD has not yet been exhaustively studied, the peculiarities of its transmission, infection rate, incubation period, and potential for transmission to other species are not definitively known. Therefore, it is possible that infected or exposed deer could be unknowingly imported into Texas, where they could then possibly infect wild deer or domestic stock. The second concern is that TB, once loose in a free-ranging population, could quickly spread, resulting in quarantines, depopulation events, and other expensive and painful containment measures.

Additionally, the provenance of imported deer cannot be reliably established at the present time, as opposed to the extensive documentation required for movement of domestic livestock. For instance, a deer might be born in a captive herd in Kansas, sold as a fawn at auction in Missouri, transported to New York as a yearling, and then sold as a two-year-old in Texas, making it difficult and perhaps impossible to ascertain if the animal has ever been at risk of infection by contact with positive animals. Finally, because deer imported into Texas are frequently liberated for hunting purposes (1,397 in 2001), the risk to the multi-billion dollar hunting and livestock industries represented by even one infected animal among a wild population is considerable.

Texas Parks and Wildlife has worked closely with the Texas Animal Health Commission to characterize the threat potential of CWD and TB to native wildlife and livestock, and to determine the appropriate level of response. TAHC possesses regulatory authority with respect to animal disease issues (in fact, if captive deer test positive for either disease, the facility is immediately subject to existing TAHC rules); for that reason, the department proposes the use of existing TAHC protocols to monitor deer and facilities operating a scientific breeder permit. Further, the department proposes to prohibit the possession of imported deer, except for deer imported prior to the effective date of the rulemaking. The department strongly believes that vigilance and early detection are crucial to minimizing the severity of biological and economic impacts in the event that an outbreak occurs in Texas, and that the suspension of importation of deer, pending resolution of the epidemiological uncertainty surrounding imported deer, is a wise and responsible course of action. The proposed rules are intended, first, to prevent the importation of potentially diseased deer, and second, to provide a bulwark against undetected infection, which by the time it is noticed in clinical manifestations among wild populations, could cause incalculable harm.

The amendment to §65.601, concerning Definitions, would add a definition of the term 'healthy condition.' The amendment is necessary to define the characteristics of deer that may be lawfully sold, offered for sale, transported, temporarily relocated, or released to the wild in this state, which in turn allows the health status of captive deer to be monitored. The amendment to §65.609, concerning Purchase of Deer and Purchase Permit, restricts the purchase of deer to in-state sources only and stipulates that transport privileges under a purchase permit do not apply to deer from out of state sources. The amendment is necessary to suspend the importation of deer until the epidemiological realities of deer diseases in other states are fully understood and deer in this state can be presumed to be safe from infection. The amendment to §65.610, concerning Transport of Deer and Transport Permit, eliminates current subsection (c) and replaces it with a provision restricting the validity of a transport permit to the transport of deer in-state only. The amendment to §65.611, concerning Prohibited Acts, is three-fold. First, would make it an offense for any person to purchase, sell, offer for sale, transport, temporarily relocate, or release into the wild a deer that is not in a healthy condition. Second, it would make it an offense for any person to possess a deer obtained from an out-of-state source, except for deer obtained prior to the effective date of the rulemaking. Third, it would make it an offense for any person to sell deer to another person if the buyer did not possess a valid purchase permit. The amendment is necessary to provide for monitoring of captive herds to allow the earliest possible detection of disease and to eliminate the future introduction of diseased animals. The amendment is intended to serve the long-term goal of minimizing the risk of disease transmission to wild populations of deer from deer possessed under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L.

2. Fiscal Note.

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

3. Public Benefit - Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of wild, native deer from communicable diseases introduced by deer imported into this state, thus ensuring the public of continued enjoyment of the resource.

(B) There will be no adverse economic effect on small businesses or microbusinesses. The cost to persons required to comply with the rules as proposed will be associated with the tests required for herd certification. The test for chronic wasting disease is approximately $25 per deceased deer. The test for Tuberculosis Herd Accreditation is estimated at $150 (two farm calls by a veterinarian; the veterinarian receives the materials to perform the test from the Texas Animals Health Commission at no cost ), plus any additional veterinary charge, which will vary, depending on the veterinarian.

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

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

4. Request for Public Comments.

Comments on the proposed rules may be submitted to Jerry Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4774 or 1-800-792-1112 extension 4774 (e-mail: jerry.cooke@tpwd.state.tx.us).

5. Statutory Authority.

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

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

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

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

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

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

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

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

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

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

(6) Healthy Condition – deer possessed under a Scientific Breeder permit are in a healthy condition if the scientific breeder possessing the deer also possesses:

(A) proof of a current, valid herd health plan for the deer within the scientific breeder facility approved by Texas Animal Health Commission; or

(B) proof that the Texas Animal Health Commission has certified the deer within the scientific breeder facility with a Chronic Wasting Disease Complete Monitored Herd status no less stringent than Level A under the provisions of 4 TAC Chapter 40 (relating to Chronic Wasting Disease); and

(C) proof that Texas Animal Health Commission has certified the deer within the scientific breeder facility with a Tuberculosis Herd Accreditation status no less stringent than “Surveyed Herd” under the provisions of 4 TAC Chapter 43, Subchapter C (relating to Eradication of Tuberculosis in Cervidae).

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

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

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

(10)[(9)] Serial Number—A permanent number assigned to the scientific breeder by the department.

(11)[(10)] Unique number—A four-digit alphanumeric identifier used by the department to track the ownership of a specific deer. Unique numbers may be assigned by the department or by the permittee. If the permittee chooses to assign the unique numbers, each deer must be tattooed with the permittee's serial number in one ear and the unique number in the other ear. No two deer shall share a common unique number.

§65.609. 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. A purchase permit is valid for a period of 30 days after it has been completed (to include the unique number of each deer being transferred), dated, signed, and faxed to the Law Enforcement Communications Center in Austin prior to the transport of any deer. The purchase permit shall also be signed and dated by the buyer or buyer's agent prior to or at the time that the transfer of possession of any deer occurs. A purchase permit does not authorize and is not valid for the transport of deer into this state from any other state or country.

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

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

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

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

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

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

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

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

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

(2) when specifically authorized by the department;

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

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

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

§65.610. Transport of Deer and Transport Permit.

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

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

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

(3) to another person on a temporary basis for nursing purposes. The scientific breeder shall complete and sign a free, department-supplied invoice prior to transporting deer to a nursery, which invoice shall accompany all deer to the receiving facility. The person receiving the deer shall sign and date the invoice upon receiving the deer, and shall maintain a copy of the invoice during the time the deer are held by that person. At such time as the deer are to return to the originating facility, the invoice shall be dated and signed by both the person holding the deer and the scientific breeder returning the deer to the originating facility, and the invoice shall accompany the deer to the original facility. A photocopy of the original of the invoice shall be submitted to the department with the annual report required by §65.608 of this title.

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

(5) to and from an accredited veterinarian for the purpose of obtaining medical attention; and

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

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

[(1)] a scientific breeder[; or]

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

(c) A transport permit does not authorize and is not valid for the transport of deer into this state from any other state or country. [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;]

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

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

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

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

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

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

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

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

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

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

§65.611. 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, E, or R shall not be commingled with deer held in a permitted scientific breeder facility.

(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.

(h) No person may purchase deer, sell deer, offer deer for sale, transport deer (except as provided in §65.610(a)(5) of this title (relating to Transport of Deer and Transport Permit)), temporarily relocate deer, or release deer into the wild in this state if the deer are in not in a healthy condition as defined in §65.601 of this title (relating to Definitions).

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

(j) Except as provided in this subsection, no person may possess a deer acquired from an out-of-state source. This subsection does not apply to deer lawfully obtained prior to the effective date of this subsection.

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

Issued in Austin, Texas, on


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