Subchapter C. SERVICES AND PRODUCTS

Subchapter C. PERMITS FOR TRAPPING, TRANSPORTING, AND TRANSPLANTING GAME ANIMALS AND GAME BIRDS

The Texas Parks and Wildlife Commission adopts the repeal of §65.609 and §65.610; amendments to §§65.601 - 65.603, 65.607, and 65.608; and new §65.604 and §65.610, concerning Scientific Breeder's Permits. Sections 65.603, 65.604, and 65.610 are adopted with changes to the proposed text as published in the December 23, 2005, issue of the Texas Register (31 TexReg 8634). The repeal of §65.609 and §65.610 and the amendments to §§65.601, 65.602, 65.607, and 65.608 are adopted without changes and will not be republished.

The changes to §65.603, concerning Application and Permit Issuance, affects the provisions governing the circumstances and conditions under which the department may deny or delay permit issuance or renewal. The change makes a nonsubstantive alteration to subsection (g)(1) and (2) to substitute the indefinite article 'a' for the indefinite pronoun 'any' as the first word. Proposed subsection (h) provided that the department could prohibit a person from acting as an agent for five years if the person had been convicted of or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, or R; a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or a violation of Parks and Wildlife Code, §63.002. As a result of discussions with the department's White-tailed Deer Advisory Committee (WTDAC), a change was made affecting the length of time that persons could be prohibited from obtaining a permit on the basis of the violations specified within the proposed section. The department was persuaded that rather than the proposed mandatory five-year period of ineligibility, there should be provision for lesser periods of ineligibility to accommodate the degree of severity of the violation. Therefore, the change provided that the department may deny permit issuance for up to five years for any person convicted of a violation of a listed offense.

Proposed subsection (i) provided that the department may refuse to grant a permit to a person the department "has reason to believe" is acting as a surrogate for another person who is prohibited from obtaining a permit. The change to proposed §65.603(i) replaces the phrase "has reason to believe" with the phrase "has evidence." The change was recommended by the WTDAC. The department believes that either wording is sufficient to convey the meaning and intent of the rule, which is to enable the department to prohibit participation in permitted activities by persons the department has determined are functioning as administrative stand-ins for other persons who are not eligible to do so under the standards established in the subchapter.

The change to proposed §65.603(j) corrects an inaccurate reference to the title of one of the members of the review panel articulated in subsection (j). The proposed text identifies the 'assistant executive director for operations.' The actual title is 'deputy executive director for operations.'

The change to §65.604, concerning Disease Monitoring, consists of several components. Section 65.604 as proposed specified an effective date of April 1, 2007 for the provisions of subsections (b) - (d) and (g), which condition the movement of deer from, into, and between scientific breeder facilities on compliance with disease-testing requirements imposed by the section as a whole. The proposed rules envisioned April 1, 2006 as the starting point for scientific breeders to begin documenting their compliance with disease-testing standards that will eventually take effect in April of 2007. The department's interest was in providing a substantial timeframe for permittees to prepare for the imposition of disease-testing requirements. However, in January 2006, the commission deferred action on the proposal until the April 5 - 6 commission meeting, rendering the contemplated starting date of April 1 impossible. Accordingly, the change removes references to the April 1, 2006 starting date in subsections (e) and (f) and instead makes the provisions of those subsections effective as of the effective date of the rule. The change also reorders the provisions of subsection (e)(1) - (4). As proposed, the subsection provided for movement-qualified status if: 1) certification by TAHC at Level A exists and/or less than five eligible mortalities have occurred, 2) no 'detected results have been obtained, and 3) 'not detected' results have been returned on at least 20% of eligible mortalities. Discussions with the TAHC and the department's Chronic Wasting Disease Task Force revealed that the 'and/or' stipulation for the provisions of paragraphs (1) and (2) was problematic. The proposed language assumed that the two provisions were equivalent (i.e., that a facility with a Level A status would by definition have met the 20% 'not detected' test requirement. The department learned that on occasion, TAHC will "suspend the advancement" in status from A to B. Thus it is possible that a facility could be at Level A status and yet not meet the 20% rule. Accordingly, the change removes 'and/or' and replaces it with 'or.' The change also clarifies confusion concerning the hierarchy of the provisions and which may be substituted for which in order to attain movement-qualified status. The intent of the department is that no facility be movement qualified if a test result of 'detected' has been returned on a mortality from that facility. Beyond this absolute restriction, a permittee may attain movement-qualified status by: 1) certification by TAHC at Level A, or 2) having less than five eligible mortalities, or 3) receiving 'not detected' results on at least 20% of eligible mortalities. The change therefore restructures paragraphs (1) - (4) to make it clear.

The change to proposed §65.610, concerning Transfer of Deer, provides an exception for the transfer of deer to a licensed veterinarian, with the provisos that the transport occurs by the most feasibly direct route, the deer are not removed from the means of transportation at any point between the permitted facility and the veterinary facility, and the deer do not leave this state. The change is necessary to accommodate the scenario in which a serious veterinary medical emergency requiring immediate transport makes compliance with notification requirements impossible or impractical. Rather than stipulate that the exception exists only in case of emergency, the department has chosen to simply create a categorical exemption for veterinary purposes.

The repeals, amendments, and new rules as adopted are a comprehensive revision of the department's rules governing the scientific breeder permit program. The intent of the rulemaking is to restructure the administrative process of the program to make it consistent with the anticipated federal requirements for cervid disease-monitoring and to improve program delivery and customer service.

The past five years have seen explosive growth in the number of scientific breeder permits issued by the department. In 2000, the department issued 385 scientific breeder permits and 947 purchase permits. By 2005, the numbers had mushroomed to 821 breeder permits and 2,084 purchase permits. At the current time, there are over 950 permitted breeder facilities in the state.

At the same time, the emergence of Chronic Wasting Disease (CWD) as a potential threat to native free-ranging deer populations has assumed national proportions; the U.S. Department of Agriculture is expected to impose mandatory identification and tracking protocols for captive cervids within the next five to ten years to address issues related to numerous animal diseases. Anticipating eventual federal actions, the Texas Animal Health Commission has published proposed rules to implement the National Animal Identification System. These developments indicate a need for the department to develop and implement effective methods for quickly and efficiently gathering, collating, storing, and retrieving the large and growing amounts of data generated by the industry. In addition, CWD has also been identified in captive deer herds in other states.

In a related rule adoption published elsewhere in this issue, the department proposes to increase the fees for scientific breeder permits and renewals. These changes are intended to increase the efficiency in the administration and delivery of the scientific breeder program. The expected results are increased program efficiency; the provision of more efficient and less time-consuming customer service; and the generation of coherent data for a number of useful purposes, such as disease monitoring.

The repeal of §65.609, concerning Purchase of Deer and Purchase Permit, is necessary because the purchase and transfer permits have been eliminated and replaced with a single transfer permit, defined in §65.601(12).

The repeal of §65.610, concerning Transport of Deer and Transport Permit, is necessary because the transport permit has been eliminated.

The amendment to §65.601, concerning Definitions, corrects a misspelling of the scientific name for mule deer in §65.601(4), adds new definitions for the terms 'movement qualified,' 'release,' and 'transfer permit,' and alters definitions for the terms 'serial number' and 'unique number.'

The definition of 'movement qualified' in §65.601(6) is necessary because new §65.604, concerning Disease Monitoring, conditions the movement of scientific breeder deer on the maintenance and results of disease-testing protocols. The definition establishes the department's understanding of the meaning of the term, defining a mandatory status for the introduction of deer to or removal of deer from a scientific breeder facility.

The definition of 'release' in §65.601(8) specifies what the department considers to be the termination of possession of a scientific breeder deer. The definition is necessary to create an obvious point at which deer can no longer be considered in the possession of a scientific breeder.

The amendment to the definition of 'serial number' in §65.601(11) clarifies that a serial number consists of the prefix "TX" followed by a four-digit number. The amendment is necessary to firmly establish what the department intends with respect to certain provisions involving serial numbers.

The definition of 'transfer permit' in §65.601(12) is necessary in order to establish that the transfer permit, although a multi-use permit, satisfies the requirements of Parks and Wildlife Code, §43.361 and §43.362, which require a person to possess a permit issued by the department to purchase, ship, or transport deer.

The amendment of the definition of 'unique number' in §65.601(13) eliminates the option for permittees to employ user-generated numbering conventions for deer held under a scientific breeder permit, thus having the effect of requiring all deer held under scientific breeder permits to be identified with a department-supplied unique number. The amendment is necessary because of confusing and misleading identification conventions that interfere with the department's attempts to maintain accurate records and inventories. The amendment also clarifies the purpose of the unique number, which is the identification of specific deer held under a scientific breeder permit. The amendment is necessary to accurately reflect the actual function of the unique numbering system.

The amendment to §65.602, concerning Permit Requirement and Permit Privileges deletes former subsection (b)(1), which was duplicative of former subsection (b)(2), which is being renumbered as subsection (b)(1). The amendment to §65.602 also adds a new subsection (b)(2) to clearly state that a scientific breeder may purchase or accept deer from another scientific breeder. The provision is a nonsubstantive addition for purposes of clarification. Scientific breeders are allowed to obtain deer from other scientific breeders. The amendment simply acknowledges this. The amendment also adds the term 'transfer' to the provisions of subsection (b)(3). Since other provisions of this rulemaking eliminate the transport and purchase permits, replacing them with the transfer permit, the amendment is necessary to add the function of the transfer permit to the list of activities authorized by a permit.

The amendment to §65.602 also imposes an expiration date of March 31, 2007, for the provisions of subsection (c), regarding requirements for the release of deer into the wild from a scientific breeder facility. Under current rule, scientific breeder deer may not be released unless they originate from a herd enrolled in a valid herd health plan approved by the Texas Animal Health Commission (TAHC). The rule was originally promulgated as part of a joint effort between the department and TAHC to reduce the potential spread of Chronic Wasting Disease (CWD) from deer imported to scientific breeder facilities from outside the state. New requirements for release of scientific breeder deer are included in the disease monitoring provisions of §65.604. The department seeks to allow a reasonable amount of time for permittees to comply with the disease monitoring provisions of new §65.604, concerning Disease Monitoring. The rule as adopted establishes April 1, 2007 as the effective date of provisions restricting deer releases to 'movement qualified' facilities only; therefore, it is necessary to continue the effectiveness of current §65.602(c) until that time. The amendment also restructures §65.602(b)(6) to reflect the addition of the transfer permit and the elimination of the purchase and transport permits.

The amendment to §65.602 is also in part necessary because of new §65.604, which establishes provisions governing the movement and release of scientific breeder deer that allow a scientific breeder to establish a status ('movement qualified'), over time, that qualifies the scientific breeder to accept deer into or move deer out of a facility for purposes of sale or release, provided the scientific breeder continues to perform disease testing at a certain rate (also provided there are no test results of 'detected'). In order to allow for a seamless transition and to give scientific breeders the opportunity to attain movement qualified status for the remainder of the current permit-year (i.e., until March 31, 2007), the department will delay the effectiveness of requirements within §65.604(b) - (c) and (g) regarding movement into or out of a facility and the loss and reestablishment of movement qualified status. As noted previously, in the interim, the provisions regarding release of permitted deer into the wild in current §65.602(c) will continue in effect. The amendment is necessary to implement a better and more effective protocol for preventing captive native cervids from becoming a disease vector.

The amendment to §65.603, concerning Application and Permit Issuance, requires an affirmation from a certified biologist that a prospective facility physically exists and contains no deer prior to the time of application; changes the permit year to run from July 1 to June 30 instead of from April 1 to March 31, consolidates all provisions governing the effect of criminal prosecutions on permit issuance in one place, and provides for a review of department decisions to refuse issuance of permits or renewals.

The department has discovered that in some cases persons have acquired scientific breeder deer and placed them within a facility before applying for a scientific breeder permit, then added deer at later dates. Another practice noticed by the department was the certification of plans by a certifying biologist even though the facility had not been built yet. This has caused significant discrepancies and difficulties for the department in identifying, tracking, and inventorying deer and transactions among scientific breeders. As a result, the department feels it is necessary, as a part of the application process detailed in §65.603, to require the certifying biologist to affirm that the prospective facility physically exists and that no deer are being held in the facility. The amendment to §65.603(a) is necessary to ensure that the department is able to maintain an accurate record of the number of deer within scientific breeder facilities.

The current permit-year (April 1 - March 31) has proven to be problematic for both permittees and the department. Given the tremendous growth of the program, department staff has found it difficult to process the large number of renewal applications, causing inconvenient delays for permittees. The amendment to §65.603(c), creating a new permit-year and reporting period, is necessary to provide additional buffer time between the end of the reporting period (March 31) and the beginning of the following permit year (July 1) to enable the department sufficient time to process reports and issue permit renewals prior to the start of the permit year. Thus, the reporting period will be from April 1 of one year to March 31 of the next year, with a May 15 deadline for submission to the department.

Prior to this rulemaking, the department, at its discretion, could refuse to issue a scientific breeder's permit or permit renewal to any person finally convicted of any violation of Parks and Wildlife Code, Chapter 43. In reviewing similar provisions in other regulations governing the possession of live animals, the department determined that a more uniform approach to situations involving the criminal history (with respect to the Parks and Wildlife Code) of permit applicants is appropriate. Therefore, the department elsewhere in this issue is also adopting changes to similar provisions affecting deer management permits and permits for the trapping, transporting, and transplanting game animals and game birds.

As a result of the review, the department determined that the decision to issue or renew a permit should take into account the applicant's history of violations involving the possession of live animals and major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies). The department reasons that it is appropriate to deny the privilege of possessing live animals to persons who exhibit a demonstrable disregard for the regulations governing the possession of live animals. Similarly, it is appropriate to deny the privilege of possessing live animals to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

Therefore, §65.603(g) - (i) specify that the department may refuse permit or renewal issuance to persons who have been finally convicted of or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R (which govern specialized permits for the possession of live animals), violations of the Parks and Wildlife Code that are Class B misdemeanors, Class A misdemeanors, or felonies, and violations of Parks and Wildlife Code, §63.002 (which although a Class C misdemeanor, specifically addresses the unlawful possession of live game animals).

The department also notes that the rule in effect prior to this rulemaking was open-ended; theoretically, a person convicted of a violation of Parks and Wildlife Code, Chapter 43, could have been prevented from ever obtaining a permit following a conviction. The department has determined that it is appropriate for the department to consider only those convictions or deferred adjudications that have occurred within five years prior to an application for a permit or renewal, reasoning that a potential five-year period of permit denial will act as a sufficient deterrent to intentional violations. The department also stresses that the intent of the rulemaking is to give the department a credible response to persons with a history of blatant disregard for the rules. However, the department does not intend for a conviction or deferred adjudication to be an automatic bar to obtaining a permit. The department intends to consider a number of factors and make such determinations on a case-by-case basis. The factors that may be considered by the department in determining whether to refuse to issue a permit or permit renewal based on a conviction or deferred adjudication would include, but not be limited to, the seriousness of the offense, the number of offenses, the existence or absences of a pattern of offenses, the length of time between the offense and the permit application, the applicant's efforts towards rehabilitation, and the accuracy of the information provided by the applicant regarding the applicant's prior permit history.

Adopted §65.603(h) applies similar standards to agents. In many cases, permit activities are conducted by persons in addition to or in lieu of the permittee. The department believes in addition to provisions affecting permittees, it is appropriate to prevent persons who have been convicted of or received deferred adjudication for an offense which could result in permit denial from assisting in activities involving live animals.

Adopted §65.603(i) allows the department to refuse permit issuance to persons who, in the judgment of the department, are acting as surrogates for persons who are prohibited from obtaining a permit. In light of the five-year period of time during which the department could choose to refuse permit issuance to persons convicted of the offenses listed in §65.603(g), it is reasonable to assume that persons might attempt to circumvent the intent of the department (i.e., that they not engage in the business of possessing, breeding and selling deer) by using another person to obtain a permit with the objective of continuing to do business as usual in the name of the shadow permittee. It is therefore necessary to address the possibility, which is accomplished by the adoption of §65.604(i).

As adopted, §65.603(j) creates a review process for department decisions concerning the issuance of permits and renewals. The amendment is necessary to create a process to allow persons who have been denied issuance of permits or permit renewals to have the decision reviewed by a panel of senior department managers. The process as adopted allows the department to reverse such decisions upon further review, and requires the department to report annually to the White-tailed Deer Advisory Committee on the number and disposition of reviews.

As adopted, new §65.604, concerning Disease Monitoring, establishes new protocols for the testing of scientific breeder deer for chronic wasting disease (CWD). The rule currently in effect prohibits the release of deer from any facility that is not enrolled in a valid herd health plan for cervidae approved by the TAHC. The current rule was promulgated in 2003 in response to concerns about the emergence of CWD in both captive and free-ranging deer populations in other states, which represents a potential threat to wild deer 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 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 detect the disease is necessary.

As adopted, new §65.604 allows a scientific breeder to release deer to the wild, provided the facility from which the deer are released is 'movement qualified.' Movement-qualified status is obtained by testing eligible deer mortalities and receiving no 'detected' results from the Texas Veterinary Medical Diagnostic Laboratories, provided that at least one of the following is true: the facility has a herd-status level of at least "A" with the TAHC, less than five eligible deer mortalities have occurred within the facility, or the testing of eligible deer mortalities occurring within the facility has resulted in test results of 'not detected' from a minimum of 20% of all eligible mortalities.' Status is maintained by continuing to test at the minimum level, but is lost if deer from a facility that is not movement qualified are introduced. If status is lost as a result of the acceptance of deer from a facility that is not movement qualified, movement of deer from the facility is automatically prohibited for a minimum of one year and the facility must reestablish movement-qualified status. The new rule is necessary to provide an effective and scientifically valid mechanism for reasonably ensuring that deer held under a scientific breeder permit are free of communicable diseases. This is most efficiently accomplished by creating a testing protocol and allowing only those deer originating from 'clean' facilities to be released or moved to other facilities.

The amendment to §65.607, concerning Marking of Deer, clarifies that the unique number required to be tattooed in a deer's ear must be a unique number assigned to the scientific breeder who possessed the deer when the deer was born or who lawfully obtained the deer from an out-of-state source. By rule, a deer may not leave a facility unless it has been tattooed with a unique number. This means that when a deer leaves the facility in which it was born (or to which it was introduced, if it was lawfully obtained from an out-of-state source when such acquisition was lawful), the deer must be tattooed with a legible unique number identifying that facility. For purposes of clarification, the amendment adds language to make the requirements of the section clearer, and to stipulate that deer also may not be knowingly accepted into a scientific breeder facility unless the deer have been tattooed in accordance with the provisions of the subchapter.

The amendment to §65.607 is necessary to ensure that the history of possession and movement of all deer held under scientific breeder permits is traceable for purposes of disease control and law enforcement. A tattoo can be an effective permanent marking if done correctly; however, poorly done tattoos can become illegible over time, which makes reliable identification problematic. To account for cases in which it is unpractical or impossible to identify deer by means of tattooing (e.g., there is no more room in the ear for an additional tattoo), the amendment also allows the department to prescribe alternative methods for permanent identification on a case-by-case basis.

The amendment to §65.608, concerning Annual Reports and Records, imposes a new reporting deadline for annual reports in order to comport the requirements of the section with changes that imposed a new permit-year, addressed earlier in the discussion of the adopted amendments to §65.603. The amendment also removes references to documentation such as purchase permits and invoices for temporary possession, which are no longer necessary because they have been eliminated. The amendment also requires that reports and records be maintained in a legible condition, which is necessary to ensure that the department is able to accurately interpret information required to be kept by permittees.

New §65.610, concerning Transfer of Deer, creates a single permit for the movement of deer from a scientific facility to any other place for any other purpose. Under current rules deer may be moved under the scientific breeder's permit, a purchase permit, a transport permit, or a temporary invoice, each of which invokes different reporting and documentation standards, creating a problematic recordkeeping burden for the department and the regulated community. This system was workable when the number of scientific breeders and persons patronizing scientific breeders were few; however, given the growth of the industry, a new approach is necessary. In concert with other provisions of this rulemaking, the new rule eliminates all permits other than the scientific breeders permit and replaces the eliminated permits with a single permit that will be required to move deer to any destination for any purpose other than veterinary care. In the adoption of an amendment to §53.14 published elsewhere in this issue, the department addresses the elimination of the fees for the transport and purchase permits.

New §65.610(e) establishes the transfer permit, specifies the period of validity, sets forth the circumstances and manner in which it is required to be used, and prescribes the recordkeeping and reporting requirements incidental to permit use. Under current rules, a transfer or purchase permit costs $30 and is valid for 30 days from the time it is activated (i.e., when the user of the permit notifies the department of pending activities for which the permit would be required). The rule as adopted creates a new permit for which there is no fee and imposes a 48-hour period of validity. The 30-day period of validity for the transfer permit proved problematic for enforcement and recordkeeping purposes, since 30 days is simply too great a time span within which to monitor or verify permit activities, and recordkeeping and reporting errors tend to be multiplied if permittees do not keep up with records in real time but instead wait until the end of the period of validity. The department believes that the 48-hour period of validity, coupled with the 48-hour mandatory reporting window following the completion of each act of transfer, will improve program efficiency, facilitate compliance by the regulated community, and make enforcement less problematic. Additionally, the requirement to report all deer movements, temporary or otherwise, within 48 hours, will greatly enhance the department's ability to quickly track animals for the purpose of epidemiological investigation in the unfortunate event of certain disease detection.

The repeal of §65.609 will function by eliminating an obsolete and unnecessary rule.

The repeal of §65.610 also will function by eliminating an obsolete and unnecessary rule.

The amendment to §65.601 will function by establishing the meaning of certain words, terms, and phrases that have unique significance within the context of the rules and are necessary to administer and enforce the provisions of the subchapter in an unambiguous manner.

The amendment to §65.602 will function by clarifying that a scientific breeder may purchase or accept deer from another scientific breeder, making the provisions of the section compatible with changes made in other sections, and setting an expiration date for provisions in anticipation of the effective date of provisions of other sections.

The amendment to §65.603 will function by requiring an affirmation from a certified biologist that a prospective facility physically exists and contains no deer prior to the time of application, altering the permit year, consolidating all provisions governing the effect of criminal prosecutions, and providing for a review of department decisions to refuse issuance of permits or renewals.

New §65.604 will function by establishing protocols for the testing of scientific breeder deer for chronic wasting disease (CWD) for purposes of allowing releases and movements of deer as part of a system for disease tracking and response.

The amendment to §65.607 will function by clarifying provisions governing identification of scientific breeder deer and the conditions under which deer may be accepted by a permitted facility, in order to buttress the department's capability to monitor and track disease outbreaks if they occur.

The amendment to §65.608 will function by altering reporting deadlines in order to comport the requirements of the section with changes to the permit year, by removing obsolete and unnecessary references to permits that no longer exist, and by requiring that reports and records be maintained in a legible condition.

New §65.610 will function by creating a single permit for the movement of deer from a scientific breeder facility and prescribing the method and manner in which the permit is to be used.

The department received six comments opposing adoption of the proposed rules. Those comments and the department's response are as follows.

One commenter opposed adoption of the rules and stated that deer should not be kept in captivity and/or transported because the chance of disease transmission is too great. The agency disagrees with the comment and responds that under Parks and Wildlife Code, §43.352, the department is authorized to issue a permit to a qualified person to possess white-tailed or mule deer for propagation, management, and scientific purposes. The commission does not have the authority to modify or eliminate this statutory provision. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department's regulations prohibited the hunting of deer held pursuant to the subchapter. The commenter also stated that because scientific breeder deer are kept in fenced enclosures and provided feed, they are tame deer and therefore the scientific breeder has a moral obligation to treat the deer in a moral fashion. The commenter stated that the rules should require that released scientific breeder deer be protected from hunting until they become wild again. The department disagrees with the comment and responds that department regulations (as well Parks and Wildlife Code, §43.365) prohibit the hunting of deer held in captivity under a permit. The department further notes that there are no statutory restrictions on the erection of fences on private property as stated in Texas Parks and Wildlife Code §1.013. Similarly, there is no statutory prohibition against feeding deer. Therefore, it would be inconsistent to require scientific breeders to meet a standard that is not required of anyone else. In addition, Parks and Wildlife Code §43.363 already prohibits the release of scientific breeder deer less than 10 days before the opening of hunting season unless the deer's antlers are removed. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed amendment to §65.601 that altered the definition of 'unique number.' The department does not agree that a change is necessary. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed rules and stated that the unique number and the elimination of transfer and transport permits was an attempt by the department to gain ownership of scientific breeder deer. The commenter also stated that deferred adjudication should not be used retroactively as a standard for denying permit issuance, and that to do so would constitute a denial of due process. The commenter also stated that the department does not follow its own rules. The department disagrees with the comments and responds that the ownership of scientific deer is not an issue addressed by the rulemaking and therefore the comment is not germane to the rulemaking. Furthermore, ownership is irrelevant to the issuance of unique numbers. The department further responds that the use of deferred adjudication as a standard in determining whether or not to issue a permit is appropriate. The intent of the department is to prevent persons who have demonstrated disregard for rules and statutes governing the possession of live wildlife from engaging in permitted activities. A person who has received deferred adjudication must fulfill conditions and terms dictated by the court in order to avoid a final conviction. Therefore the department has included deferred adjudication as a standard in order to ensure that persons who have demonstrated a disregard for rules and statutes regarding the possession of live wildlife are not able to obtain a scientific breeder permit. The department also responds that it does not believe that due process rights are affected by the rules as adopted. Parks and Wildlife Code §43.357 refers to the permit is a privilege rather than a right. Parks and Wildlife Code, Chapter 43, gives the commission the authority to establish the qualifications of persons who may obtain a scientific breeder permit. Lastly, the department is not a scientific breeder. However, Parks and Wildlife Code §12.013 expressly authorizes the department to take, posses and engage in scientific studies involving wildlife. No changes were made as a result of the comment.

One commenter opposed adoption of the rules and stated that the state does not own deer held under a scientific breeder deer. The commenter also stated that mortalities resulting from causes other than disease should be exempt from disease testing requirements. The department disagrees with the comment and responds that the ownership of scientific deer is not an issue addressed by the rulemaking and therefore the comment is not germane to the rulemaking. The department also responds that all mortalities should be tested because the etiology of mortalities is not always obvious. For instance, what appears to be a simple case of an apparently healthy deer colliding with a fence and suffering a broken neck could actually be the result of neuropathic effects of disease. No changes were made as a result of the comment.

One commenter opposed adoption of the rules and stated that there were discrepancies between the department's disease monitoring tracking protocols and those proposed by the Texas Animal Health Commission (TAHC), which impose a burden on scientific breeders of having to comply with two separate systems. The commenter also stated that the hunting of scientific breeder deer is canned hunting and that the department should prohibit the hunting of released scientific breeder deer for a period of six months following release. The department disagrees with the comment and responds that the department has worked very carefully with the TAHC in crafting the rules as adopted, and that the rules as adopted are compatible with the animal identification system envisioned by TAHC. The department further responds that it is impossible to distinguish a scientific breeder deer from any other deer in the wild; therefore it would be impossible to enforce a provision requiring scientific breeder not to be hunted following release. As noted above, §43.363 essentially places some restrictions on the hunting of recently released scientific breeder deer. No changes were made as a result of the comment.

The department received ten comments supporting adoption of the proposed rules.

The Texas Wildlife Association commented in support of the rules as adopted.