Presenter: Jerry Cooke

Commission Agenda Item No. 7
Action
Scientific Breeder Regulations
November 2002

I. Discussion: At the August meeting, the Commission voted to adopt amendments to the Scientific Breeder Proclamation, but did not adopt proposed provisions for mandatory testing and monitoring protocols for detection of tuberculosis and Chronic Wasting Disease. During discussion of the topic, the Commission inquired about the feasibility of dissolving the temporary suspension on the importation of deer, and staff informed the Commission that due to conflicts with the Administrative Procedures Act, not all actions necessary to rescind the importation suspension could be undertaken at the August meeting. At that time, the Commission authorized staff to withdraw proposed amendments to §§65.609, 65.610, and 65.611 and republish a new proposal that, in addition to the amendments contained in the original proposal, also included the removal of the importation suspension. The new proposal appeared in the September 27, 2002, issue of the Texas Register (27 TexReg 9141). Staff will provide a summary of public comment concerning the proposal at the time of the meeting.

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

“The Texas Parks and Wildlife Commission adopts 31 TAC §§65.609, 65.610, and §65.611, concerning Scientific Breeder’s Permits, with changes to the proposed text as published in the September 27, 2002, issue of the Texas Register (27 TexReg 9141).”

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


Commission Agenda Item No. 7
Exhibit A

Scientific Breeder Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§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 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.

The Texas Parks and Wildlife 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. At the present time, regulations promulgated by the Texas Animal Health Commission are deemed by the department to be sufficiently stringent to prevent the importation of diseased cervids into the state. Therefore, the department proposes to lift the temporary suspension on importation of deer.

The amendment to §65.609, concerning Purchase Permit and Purchase of Deer would lift the temporary suspension on importation of deer. The amendment is necessary because the department has determined that rules promulgated by the Texas Animal Health Commission are sufficient protection against the importation of diseased cervids.

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 also lifts the temporary restriction on the importation of deer. 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, 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 create an auditable paper trail for transactions involving white-tailed deer.

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. In light of regulations promulgated by the Texas Animal Health Commission to prevent infected deer from being imported to Texas, the commission has determined that a continued suspension of importation of deer is unnecessary.

(B) There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(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.

§65.609. 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) the 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.

(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 prior to the effective date of this subsection.]

§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 or 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.]

[(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.

(d)[(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.

(e)[(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.

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

(g)[(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.

(h)[(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.

(i)[(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 sell deer to another person unless either the purchaser or the seller possesses a purchase permit valid for that specific transaction.

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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