31 TAC §§65.601, 65.602, 65.608, 65.610, 65.611
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 Texas from any state, except for properties that have
a TB-free status.
The Texas Parks and Wildlife Department regulates the importation of white-tailed
and mule deer under the provisions of Scientific Breeder Permit regulations.
Currently, the rules require all deer entering the state to be accompanied
by a veterinarian’s statement that the animals are free of evidence
of contagious and communicable diseases, and further require all imported
animals to have been tested in accordance with any applicable regulations
of the Texas Animal Health Commission. The current rules, though helpful,
do not adequately address several potential problems. The first of these concerns
CWD. Because CWD has not yet been exhaustively studied, the peculiarities
of its transmission, infection rate, incubation period, and potential for
transmission to other species are not definitively known. Therefore, given
the possibility that infected or exposed deer could be or have been unknowingly
imported into Texas, where they could then possibly infect wild deer or domestic
stock, some sort of monitoring protocol is appropriate. The second concern
is that TB, once loose in a free-ranging population, could quickly spread,
resulting in quarantines, depopulation events, and other expensive and painful
containment measures. Again, the department believes that some form of survey
and testing program is imperative.
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 Missouri, transported to 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 Texas Parks and Wildlife Department has worked closely with the Texas
Animal Health Commission to characterize the threat potential of CWD and TB
to native wildlife and livestock, and to determine the appropriate level of
response. TAHC possesses regulatory authority with respect to animal disease
issues (in fact, if captive deer test positive for either disease, the facility
is immediately subject to existing TAHC rules); for that reason, the department
proposes the use of existing TAHC protocols to monitor deer and facilities
operating a scientific breeder permit. 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 a reasonable herd survey and testing regime, pending
resolution of the epidemiological uncertainty surrounding imported deer, is
a wise and responsible course of action. The proposed rules are intended,
first, to prevent the importation of potentially diseased deer, and second,
to provide a bulwark against undetected infection, which by the time it is
noticed in clinical manifestations among wild populations, could cause incalculable
harm.
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.
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.
Mr. Macdonald has also determined that for each of the first five years
the rules as proposed are in effect, 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.
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.
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.
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.
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).
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 legal authority to adopt.
Filed with the Office of
the Secretary of State on July 2, 2002.
TRD-200204212
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 18, 2002
For further information, please call: (512) 389-4775