Presenters: Clayton Wolf

Commission Agenda Item No. 5
Action
Scientific Breeder Regulations
April 2003

I. Discussion: At the January meeting, the Commission voted to adopt the elimination of fawn reports for scientific breeders. The Commission also authorized staff to publish for public comment in the Texas Register a proposal that would modify the provisions governing release of scientific breeder deer to the wild and would require scientific breeders to file with the department a diagram of any enlargements or additions to a scientific breeder facility prior to the introduction of deer to the enlargement or addition. The proposal appeared in the February 21, 2003 issue of the Texas Register (28 TexReg 1608). Staff will provide a summary of public comment concerning the proposal at the time of the meeting.

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

"The Texas Parks and Wildlife Commission adopts 31 TAC §65.602 and §65.603, concerning Scientific Breeder’s Permits, with changes to the proposed text as published in the January 21, 2003, issue of the Texas Register (28 TexReg 1608)."

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


Commission Agenda Item No. 5
Exhibit A

Scientific Breeder Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §65.602 and §65.603, concerning Scientific Breeder's Permits. The amendment to §65.602, concerning Permit Requirement and Permit Privileges, would modify the current regulation (which requires the department to approve the liberation of scientific breeder deer to the wild prior to such liberation) by prohibiting the release of scientific breeder deer to the wild unless the deer are released directly from a herd covered by a current, valid herd health plan approved by Texas Animal Health Commission (TAHC) or the deer meet the entry requirements for deer established by TAHC. The department’s rule as currently in effect is a control mechanism intended to prevent the unrestricted release of deer to the wild and 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 existing pens or add new pens to a facility to submit a diagram of the additions or enlargements prior to placing deer in them. The amendment would also clarify that no diagrams need be submitted with annual permit renewals provided the facility has not been enlarged or added to. The department would like to make clear that the diagram requirement is not subject to approval or disapproval by the department. 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 §65.602, 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, 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 Clayton Wolf, Texas Parks and Wildlife Department, 111 E. Travis, Suite 200, La Grange, Texas, 78945; (979) 966-0388 (e-mail: clayton.wolf@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 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).

(c) No person may release a deer obtained or possessed under this subchapter to the wild unless the person can prove that the deer:

(1) came directly from a facility enrolled in a current, valid herd health plan for cervidae approved by Texas Animal Health Commission; or

(2) meets the entry requirements established by 4 TAC §51.10 (relating to Cervidae).

§65.603. Application and Permit Issuance.

(a) An applicant for an initial [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 for renewal [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) If a scientific breeder facility is enlarged or added to, the permittee shall submit an accurate diagram of the facility, including the additions or enlargements, to the department. No person shall introduce or cause the introduction of deer to a pen that has been added or enlarged unless the diagram required by this subsection is on file at the department’s Austin headquarters.

(g) 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.

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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