Presenter: Jerry Cooke

Commission Agenda Item No. 12
Action
Scientific Breeder Regulations
Disease Testing and Monitoring Measures
August 2002

I. Discussion: At the May meeting, the Commission deferred action on a proposed definition of “healthy condition” as well as mandatory testing and monitoring protocols for detection of tuberculosis and Chronic Wasting Disease in deer held under scientific breeder permits. The deferral was to allow time for Texas Deer Association (TDA) members to voluntarily establish a testing/monitoring program amenable to the Texas Animal Health Commission. The TDA also indicated at that time that a disease management plan for their membership would be developed and presented to the Commission at the August meeting. Additionally, the Commission authorized staff to withdraw the original proposal and republish a new proposal. The new proposal appeared in the July 19, 2002, issue of the Texas Register (27 TexReg 6492). Staff will provide a summary of public comment concerning the proposal at the time of the meeting.

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

“The Texas Parks and Wildlife Commission adopts 31 TAC §65.601, 65.602, 65.608, 65.610, and §65.611, concerning Scientific Breeder’s Permits, with changes to the proposed text as published in the July 19, 2002, issue of the Texas Register (27 TexReg 6492).”

Attachments – 2

1. Exhibit A – Proposed Scientific Breeder Rules
2. Exhibit B – Fiscal Note (Available upon request)


Commission Agenda Item No. 12
Exhibit A

Scientific Breeder Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.601, 65.602, 65.608, 65.610, and 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

The

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 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. Therefore, the department proposes additional reporting requirements for scientific breeders in order to more accurately determine the population numbers within each facility. 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. Thus, the department is proposing to allow the release of deer from scientific breeder facilities to the wild only by prior written authorization of the department.

The

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 §65.602, concerning Permit Requirement and Permit Privileges, would require permittees to obtain written approval from the department prior to the release of scientific breeder deer to the wild. The amendment is necessary in order to ensure that infected animals are not inadvertently introduced amidst wild populations of native deer. The amendment to §65.608, concerning Annual Reports and Records, would require scientific breeders to report the number of fawns produced each year. The amendment is necessary to for the department to determine as accurately as possible the total number of deer within a facility, which in turn enables the department to determine that all deer within a facility are accounted for each year. The amendment to §65.610, concerning Transport of Deer and Transport Permit, stipulates that deer temporarily relocated for nursing or veterinary purposes may not leave the state for those purposes. The amendment is necessary to prevent deer from being relocated beyond the department’s ability to monitor or enforce laws designed to protect Texas deer from exposure and infection. 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 or that might be contracted by exposure to deer outside this state, thus ensuring the public of continued enjoyment of the resource.

(B) There will be minimal adverse economic effect on small businesses or microbusinesses. The direct 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 cost for Tuberculosis Herd Accreditation is estimated at two farm calls by a veterinarian (estimated to be no more than $150 per visit) plus approximately $4.00-5.00 per animal (the veterinarian receives the materials to perform the test from the Texas Animals Health Commission at no cost). The department is unable to quantify the indirect costs of compliance, as the effort and infrastructure cost of handling deer varies widely from facility to facility.

(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

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.

§65.602. Permit Requirements and Permit Privileges.

(a) No person may possess a live deer in this state unless that person possesses a valid permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R.

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

(1) possess deer within the permitted facility for the purpose of propagation;

(2) engage in the business of breeding legally possessed deer within the facility for which the permit was issued;

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

(4) release deer from a permitted facility into the wild as provided in this subchapter, provided the permittee has received written approval from the department prior to the release;

(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;

(6) temporarily relocate and hold deer in accordance with the provisions of §65.610(a)(2) and (3) of this title (relating to Transport of Deer and Transport Permit) for breeding or nursing purposes; and

(7) temporarily relocate and recapture buck deer under the provisions of Subchapter D of this chapter (relating to Deer Management Permit).

§65.608. Annual Reports and Records.

(a) Each scientific breeder shall file a completed annual report on a form supplied or approved by the department, accompanied by photocopies of all invoices for the temporary relocation of deer and all purchase permits used by the permittee during the reporting period, by not later than April 16 of each year.

(b) 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, including all invoices for the temporary relocation of deer, and buyer's and seller's invoices, as applicable, of all purchase permits used by the permittee.

(c) A person holding deer for nursing purposes shall maintain and, upon request, provide appropriate invoices attesting to the source of all deer in the possession of that person.

(d) A permittee shall notify the department in writing by November 1 of each year of the exact number of fawns held by the permittee in each permitted facility, including fawns that have been temporarily relocated for nursing purposes.

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, provided the deer do not leave this state. 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, provided the deer do not leave this state; 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 a scientific breeder.

(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.

(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.

(k) 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 possessed prior to the effective date of this subsection.

§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 another location for breeding, nursing, or [a] veterinary purposes as provided in this subchapter [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 possessed in this state 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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