Commission Agenda Item No. 5
Exhibit A

INTERSTATE TRANSPORT OF DEER THROUGH TEXAS

PROPOSAL PREAMBLE

 1. Introduction.

         The Texas Parks and Wildlife Department proposes new §65.905, concerning Interstate Transport of Deer through Texas.

         Proposed new §65.905 would stipulate the conditions under which persons may possess white-tailed or mule deer in Texas without a permit issued by the department under Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, or R.

         The provisions of 31 TAC Chapter 65, Subchapter T govern the possession of deer under a deer breeder permit. Under that subchapter, §65.602, 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. Further, also under Subchapter T, §65.611(f), no person in Texas may possess a deer acquired from an out-of-state source or import or attempt to import deer from an out-of-state source. The latter rule was promulgated in 2005 to address the threat to wild and farmed deer in Texas posed by Chronic Wasting Disease (CWD). In 2010, the rule was amended to clarify that it was also intended to prevent the introduction or spread of other diseases, including bluetongue virus, Epizootic Hemorrhagic Disease Virus, Malignant Catarrhal Fever, and Adenovirus Hemorrhagic Disease, published in the January 8, 2010, issue of the TexasRegister (35 TexReg 252). The department on several occasions has refused to allow the transportation of captive cervids through Texas on the basis of protecting the state’s wild and farmed deer populations from disease.

         Recent federal rulemaking has created a federal CWD-management infrastructure that has the consequence of allowing the interstate transport of captive cervids by persons who meet federal herd-certification requirements. The federal action, which was published in the Federal Register (77 FR 35542–35571) and is already in effect, preempts the department’s authority to close its borders to the transport of farmed cervids through the state. For this reason, it is necessary for the department to proposed a new rule to allow the interstate transport of captive cervids through Texas by persons who are allowed to do so under federal law. However, because the department cannot disregard the potential threat to native and farmed deer in the state posed by deer entering the state from other states, the department believes it is prudent to promulgate rules that require specific actions to be undertaken by persons who desire to transport deer through Texas.

         Proposed new §65.905 would set forth the requirements a person would be required to meet in order to transport or possess deer in Texas without a permit issued by the department. The proposed new rule would apply only to the extent that department rules regarding the importation and/or transport through the state of white-tailed and mule deer not possessed under a permit issued by the department are preempted under the provisions of 9 CFR §81.5. It is the intent of the department to allow the entry and transport through Texas only those deer that are lawfully qualified for interstate transport under federal law and to deny entry and transport to all other deer.

         Proposed new §65.905 (1)(A)– (E) would require a person transporting deer through Texas under the proposed rule to physically possess a valid certificate of veterinary inspection attesting to the fact that the deer in possession meet the herd certification requirements of the United States Department of Agriculture for interstate transportation of captive cervids. The department has determined that is prudent to require persons who transport deer through the state pursuant to authority of federal regulations to possess proof that the deer in fact meet the federal standards for interstate transport. This proof would consist of the certificate of veterinary inspection issued by the Animal and Plant Inspection Service (APHIS) of the U.S. Department of Agriculture. The proposed new paragraph also would require deer transported through Texas to be confined at all times in a sealed vehicle and would prohibit both the release of deer in Texas and the commingling of deer with any other susceptible species while in Texas. The optimum method of reducing the disease threat posed by deer originating from an out-of-state source (absent a prohibition on entry) is to require confinement and prohibit contact with other animals. In order to verify that deer are confined at all times, the proposed rule would require trailers and/vehicles used to confine deer to be sealed with a mechanical security seal. Such seals are common in the trucking, container, and rail freight businesses. Proposed new paragraph (1)(F) would require a person to notify the department and furnish certain information regarding dates, vehicles and trailers, cargo, seal and personnel identification, and route not less than 24 nor more than 36 hours in advance of entering the state while in possession of deer. The department considers that optimum vigilance in protecting the state’s wildlife resources is preserved when the department has certain specific prior knowledge that deer from an out-of-state source are to be transported through the state. By requiring particular information regarding the date, cargo, route, description of vehicles and trailers, seals, and on-site personnel, the department is able to quickly determine the status of any deer encountered in the act of transport.

         Proposed new paragraph (2) would require a person in possession of deer under the provisions of the section to possess an authorization number issued by the department at all times the person is in Texas while in possession of deer without a permit. The provision is necessary to provide a method for validating that a person in fact complied with the notification requirements of paragraph (1).

         Proposed new paragraph (3) would require persons transporting deer through the state under the provisions of the section to immediately notify the department in the event that any deer escape confinement while in the state of Texas, a seal on a trailer or vehicle used to transport deer under the provisions of this section is removed for any reason, or any condition or event occurs that causes the person in possession of deer to alter the route being taken or the schedule reported to the department under paragraph (1). The department considers that the possibility of unplanned events exists. As a result, it is necessary to notify the department when such unplanned events occur.

2. Fiscal Note.

          Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the proposed new rule is in effect there will be no fiscal implications for the department as a result of enforcing or administering the rule. The rule will be enforced and administered by existing personnel.

3. Public Benefit/Cost Note.

         Mr. Lockwood also has determined that for each of the first five years that the proposed new rule is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the protection of native and farmed deer for enjoyment by the public.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that there will be minimal adverse economic impacts on small businesses or microbusinesses as a result of the proposed new rule, consisting of the cost of purchasing mechanical seals for tailgates and doors on trailers and vehicles used to confine deer. The department has no method for estimating how many small or microbusinesses might be affected by the proposed new rule, because the Texas border has been closed to the importation of white-tailed and mule deer for any purpose for over 10 years. However, the cost of most mechanical security seals is less than $5 per seal. Thus, the adverse economic impact to small and microbusinesses is estimated to be approximately $5 per tailgate or door.

         The department considered several alternatives to the proposed new rule that would lessen or eliminate the negative economic impacts to small and microbusinesses and still achieve the purpose of the rule. The department considered elimination of the sealed-trailer requirement. This alternative was rejected because the department must have a method of determining that a trailer or vehicle used to confine deer has not been opened while in or moving through the state. The department also considered not promulgating the rule at all. This alternative was rejected because the department has an affirmative duty to protect the wildlife resources of the state. The department also considered, in lieu of the proposed new rule, a rule that would require department personnel to escort shipments of deer to ensure that deer were not released or commingled. This alternative was rejected because the department would be required to reallocate resources from other department operations to execute such an alternative. The alternative selected is believed by the department to establish appropriate safeguards without negatively impacting department operations.

         The proposed new rule will result in negative economic impacts to persons required to comply, namely the approximately $5 per tailgate or door for the purchase of security seals.

         (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

         (D) The department has determined that Texas Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (E) 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 rule, as the rule would not affect private real property.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4363; e-mail: mitch.lockwood@tpwd.state.tx.us.

5. Statutory Authority.

         The new rule is proposed under Parks and Wildlife Code, §61.021, which prohibits the possession of a game animal except by proclamation of the commission; and §61.052, which requires the commission to regulate the periods of time when it is lawful to possess game animals and the means, methods, and places in which it is lawful to possess game animals.

         The proposed new rule affects Parks and Wildlife Code, Chapter 61.

6. Text.

         §65.905. Interstate Transport of Deer through Texas. Only to the extent that department rules regarding the importation and/or transport through the state of white-tailed and mule deer not possessed under a permit issued by the department are preempted under the provisions of 9 CFR §81.5, this section shall apply.

                 (1) A person without a permit issued by the department may transit the state while in possession of live deer lawfully obtained in another state, provided:

                         (A) the person physically possesses a valid certificate of veterinary inspection attesting to the fact that the deer in possession meet the herd certification requirements of the United States Department of Agriculture for interstate transportation of captive cervids;

                         (B) the deer are confined at all times;

                         (C) the deer are not released;

                         (D) the deer are not commingled with any other susceptible species, as defined in 4 TAC §40.3(a)(3) while in the state of Texas;

                         (E) the doors and/or tailgate of any trailer or vehicle used to confine the deer during transport have been secured with a numbered or otherwise uniquely identified, tamper-resistant, mechanical security seal prior to entering the state of Texas, which seal(s) shall not be removed while the vehicle or trailer is in the state of Texas; and

                         (F) the person or the person’s representative has contacted the department by notifying the Law Enforcement Communications Center in Austin not less than 24 nor more than 36 hours in advance of entering the state while in possession of deer and provided to the department:

                                  (i) the dates and times that the person expects to enter and depart the state of Texas while in possession of deer without a permit issued by the department;

                                  (ii)  the specific points of origin and destination of each deer being transported;

                                  (iii) the species and quantity of deer being transported;

                                  (iv) the specific route the transport will follow, including the points at which the transporter will enter and depart the state of Texas;

                                  (v) a description of the make, model, and color of all vehicles and trailers to be employed in the transport, including license plate numbers;

                                  (vi) the unique identifier of the security seal(s) used on each vehicle and/or trailer used to confine deer; and

                                  (vii) the name, drivers license number, and cell phone numbers of any person accompanying the deer while the deer are in the state of Texas.

                 (2) Upon receiving the information required under paragraph (1) of this subsection, the department will issue an authorization number to the person providing the information. It is an offense for any person to possess or transport deer through the state of Texas under the provisions of this section unless the person physically possesses a department-issued authorization number that is valid for the specific act of transport being conducted.

                 (3) A person transporting deer under the provisions of this section shall immediately notify the department in the event that:

                         (A) any deer escape confinement while in the state of Texas;

                         (B) a seal on a trailer or vehicle used to transport deer under the provisions of this section must be removed for any reason; or

                         (C) any condition or event occurs that causes the person in possession of deer to alter the route being taken or the schedule reported to the department under paragraph (1) 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