Presenter: Clayton Wolf

Commission Agenda Item No. 9
Action
Scientific Breeder Regulations
January 2003

I. Discussion: At the November meeting, the Commission voted to adopt provisions for testing and monitoring protocols for detection of Chronic Wasting Disease in deer held under Scientific Breeder permits. During discussion of the topic, the Commission revisited previously adopted provisions concerning release of breeder deer to the wild and fawn reports. As a result, staff recommended eliminating the fawn report and modifying the release provision to allow breeders to release to the wild if the facility met herd health criteria established by the Texas Animal health Commission. The Commission authorized staff to publish the proposed amendments in the Texas Register for public comment. The proposal also contains an amendment that would require a diagram of additions to or expansions of an existing breeder facility to be on file with the department prior to the introduction of deer to the addition or expansion. A letter explaining the proposed amendments and a copy of the proposed amendments was mailed to every scientific breeder in the state. The new proposal appeared in the December 20, 2002, issue of the Texas Register (27 TexReg 11899). 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 §§65.602, 65.603, and §65.608, concerning Scientific Breeder’s Permits, with changes to the proposed text as published in the December 20, 2002, issue of the Texas Register (27 TexReg 11899)."

Exhibit A - Proposed Scientific Breeder Rules
Exhibit B - Fiscal Note (Available Upon Request)


Commission Agenda Item No. 9
Exhibit A

Scientific Breeder Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.602, 65.603, and §65.608, concerning Scientific Breeder's Permits. The amendment to §65.602, concerning Permit Requirement and Permit Privileges, would modify the current requirement of department approval prior to the liberation of deer. The amendment would require a scientific breeder facility to possess either proof of a current, valid herd health plan approved by Texas Animal Health Commission for the deer within the scientific breeder facility or 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). The department’s rule as currently in effect contemplates a control mechanism to prevent the unrestricted release of deer to the wild. This was intended as a component of the department’s overall strategy to detect and if necessary contain chronic wasting disease (CWD), which is necessary to protect both the interests of deer breeders and the health of a public resource that generates approximately $600 million per year in economic activity associated with hunting.

The amendment to §65.603, concerning Application and Permit Issuance, would require permittees who enlarge or add pens to a facility to submit a diagram of the facility improvements prior to placing deer in them. The amendment is necessary to enable wardens and biologists to accurately track the numbers and location of white-tailed deer in or originating from scientific breeder facilities.

The amendment to §65.608, concerning Annual Reports and Records, would eliminate the annual fawn report. The fawn report was intended as a tool for reliably determining the total number of deer within a breeder facility, which knowledge can be used to detect the surreptitious attempt to evade the intent of other regulations by releasing or transferring deer without the department’s knowledge or oversight. The department intended the regulation as a component of the strategy to prevent the unintentional spread of CWD before a reasonably informed determination could be made that it does not exist in the state, the rationale being that all potential avenues for disease transmission, even those that may be comparatively slight in terms of probability, must be addressed as a matter of thoroughness and diligence. However, the fawn report is not a critical component of the department’s disease management strategy.

The proposed rules, as well as several other previous rulemakings, are in response to the emergence of CWD in both captive and free-ranging deer populations in other states, which is of concern due to the potential threat to wild deer and livestock populations in Texas. 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. The department has worked closely with the Texas Animal Health Commission to characterize the threat potential of CWD to native wildlife and livestock, and to determine the appropriate level of response. 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 implementation of reasonable rules to prevent the spread of the disease if in fact it is present in Texas is warranted.

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, thus ensuring the public of continued enjoyment of the resource, as well as the protection of the multi-million dollar hunting industry.

(B) There will be minimal adverse economic effect on small businesses or microbusinesses. Although there is no charge imposed by the Texas Animal Health Commission for participation in or obtaining a herd health plan or a Complete Monitored Herd status, there are minimal direct costs associated with ear-tagging animals for purposes of identification under 4 TAC Chapter 40. 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. Additionally, there is a cost associated with deer mortalities, in that any mortality within a breeder facility will have to be tested for CWD. This cost consists of a veterinary visit and the actual cost of the test. The department estimated the maximum cost at $140 per deceased deer. The charge for a visit varies across the state, but should not be more than $100, and the diagnostic lab test is $25 for a brainstem in formalin, or $25 for a complete head, plus a $15 disposal fee by the lab.

(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.

§65.602. Permit Requirement 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 possesses proof of one of the following:

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

(B) 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) [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).

§65.603. 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 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 plan;

(B) the activities identified in the breeding 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 of this title (relating to Miscellaneous Wildlife Licenses and Permits); 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 department has received the fee as specified in §53.8 of this title (relating to Miscellaneous Wildlife Licenses and Permits).

(c) A scientific breeder's permit shall be valid from the date of issuance until the immediately following March 31.

(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 of this title (relating to Miscellaneous Wildlife Licenses and Permits).

(e) An authorized agent may be added to or deleted from a permit at any time by faxing or mailing an agent amendment form to the department. No person added to a permit under this subsection shall participate in any activity governed by a permit until the department has received the agent amendment form.

(f) No person shall introduce or cause the introduction of deer to a pen that has been added or enlarged unless an accurate diagram of the physical layout of the entire facility, including the additions or enlargements, is on file at the Austin headquarters of the department.

(g) [(f)] 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.

§65.608. 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.]

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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