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Public comments are due by 5 p.m. November 4, 2009.

Public Comment Directions:

Visit website: Click Here or send to Clayton Wolf at clayton.wolf@tpwd.state.tx.us

Appointed by the governor and confirmed by the Texas Senate, the commission adopts policies and rules to carry out all programs of the Texas Parks and Wildlife Department.

Next Regular Meeting
* Committees: 9 a.m. Wednesday, November 4, 2009
* Commission: 9 a.m. Thursday, November 5, 2009
* Location: TPWD Headquarters, Austin — Directions
* The agenda will be linked here as soon as it is posted on the Web site.
* Live streaming audio will be available.
* Commission Meeting Dates, Agendas, Archived Audio, and Transcripts

The online public comment period is 08:00 a.m. October 2, 2009, through 05:00 p.m. November 4, 2009.

DEER BREEDER PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §65.611 and new §65.611, concerning Deer Breeder Permits. The proposed repeal and new section are necessary to address department concerns about wildlife diseases that could potentially be transmitted to wildlife in Texas by deer originating from out-of-state sources.

Proposed new subsection (a) would require that 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 not be commingled with deer held in a permitted deer breeding facility. The proposed new subsection is identical to current subsection (a) and is necessary because other permits issued by the department authorize the temporary capture of deer from the wild for various purposes, while a deer breeder permit authorizes only transfers of breeder deer between deer breeders or release to the wild.

Proposed new subsection (b) would make it an offense for a person to place or hold breeder deer in captivity at any place or on any property other than property for which a deer breeder’s permit or other lawful permit is issued, and would provide an exception for the transportation and temporarily holding of breeder deer for breeding, nursing, or veterinary purposes. The proposed new subsection is identical to current subsection (b) and is necessary to prevent the commingling of breeder deer with wild deer, except for release or sale from facilities meeting disease management criteria, or on a temporary basis for legitimate purposes such as breeding at another facility, nursing, or veterinary care.

Proposed new subsection (c) would prohibit the holding of breeder deer in a trailer or other vehicle of any type except for the purpose of immediate transportation from one location to another. The proposed new subsection is identical to current subsection (c) and is necessary to ensure that deer are humanely treated.

Proposed new subsection (d) would stipulate that possession of a deer breeder’s permit is not a defense to prosecution under any statute prohibiting abuse of animals. The proposed new subsection is identical to current subsection (d) and is necessary to ensure that deer are humanely treated.

Proposed new subsection (e) would prohibit deer breeders from exceeding the number of breeder deer allowable for the permitted facility, as specified by the department on the deer breeder’s permit. The proposed new subsection is identical to current subsection (e) and is necessary because only by establishing the number of deer that may be lawfully possessed in a given facility is the department able to prove cases in which people have obtained deer unlawfully.

Proposed new subsection (f) would clearly and unambiguously state that the importation of deer or attempted importation of deer into to Texas from an out-of-state source is an offense. The proposed new section is necessary to eliminate confusion surrounding the basis for the current rule, which prohibits the possession of deer obtained from an out-of-state source.

The provisions of current subsection (f) that prohibit the possession of deer obtained from an out-of-state source and create an exception for deer obtained prior to June 21, 2005, are retained. The provision prohibiting the possession of deer obtained from an out-of-state source is necessary to prevent the introduction of disease to wild populations in Texas. The provision creating an exception for deer obtained prior to June 21, 2005 is necessary because June 21, 2005 is the effective date of the provision prohibiting the possession of deer obtained from an out-of-state source and the department did not want the rule to be retroactive.

Current subsection (f) was promulgated in 2005 in response to concerns about the potential introduction of Chronic Wasting Disease (CWD) to susceptible native ungulate populations. Although intended at the time to address CWD, the rule for all practical purposes had the additional effect of protecting wildlife and livestock in Texas from all diseases that affect, are carried by, or are transmissible through white-tailed or mule deer. The proposed new subsection would make it clear that the act of importing or attempting to import white-tailed deer or mule deer is an offense, which is necessary to protect native wildlife populations from various disease threats.

Since 2005, the department has become aware of additional potential epidemiological threats to native wildlife, particularly bluetongue virus (BTV), Epizootic Hemorrhagic Disease Virus (EHDV), Malignant Catarrhal Fever (MCF), and Adenovirus Hemorrhagic Disease (AHD), all of which are viruses that affect deer or can be transmitted by deer to other wildlife or livestock.

EHDV and BTV are closely related viruses, transmitted by biting insects, which cause hemorrhagic diseases in ruminant animals such as sheep, cattle, and deer. Hemorrhagic diseases have been implicated in large-scale mortality in white-tailed deer, mule deer, and pronghorn antelope (Thorne, 1982 <http://www.jwildlifedis.org/cgi/content/full/42/1/159#THORNE-1982#THORNE-1982> ; Gibbs and Greiner, 1989 <http://www.jwildlifedis.org/cgi/content/full/42/1/159#GIBBS-AND-GREINER-1989#GIBBS-AND-GREINER-1989> ). Mortality rates for deer with EHDV or BTV can be as high as 50%, according to the Texas Veterinary Medical Diagnostic Laboratory. Studies by the Auburn University Veterinary Diagnostic Laboratory have documented the presence in Alabama of the five strains (serotypes) of BTV known to occur in North America (serotypes 2, 10, 11, 13, and 17). The presence of these serotypes raises the concern that the epidemiology of these viruses in North America may be changing and could result in more extensive disease in U.S. livestock and wildlife.

Malignant catarrhal fever (MCF) is a frequently fatal disease caused by one of several herpesviruses. White-tailed deer are extremely susceptible to MCF, which has been detected in populations of captive cervids in the north-central United States.

Adenovirus hemorrhagic disease (AHD) was identified in California in 1993 and caused high mortality in mule deer.

The emergence of numerous disease threats points to the need for the department to be proactive in protecting the state’s wildlife resources and the multi-billion-dollar hunting and ecotourism industries that depend upon them. The department strongly believes that prohibiting the entry of deer from other states is a critically important step in minimizing to the greatest extent possible the potential biological and economic impacts that a disease outbreak could cause in Texas.

2. Fiscal Note.

Mr. Clayton Wolf, Big Game Program Director, has determined that for each of the first five years that the rule as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcement or administration of the rule.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the protection of native wild deer from disease threats originating from imported deer.

(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 on small businesses and micro-businesses. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules. The rules would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. In particular, the proposed rule would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

(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 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.

4. Request for Public Comment.

Comments on the proposed rule may be submitted to Clayton Wolf, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4568 (e-mail: clayton.wolf@tpwd.state.tx.us).

5. Statutory Authority.

The repeal is proposed under the authority of Parks and Wildlife Code, §43.357, which authorizes the commission to make regulations governing procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer.

The proposed repeal affects Parks and Wildlife Code, Chapter 43.

5. Statutory Authority.

The rule is proposed under the authority of Parks and Wildlife Code, §43.357, which authorizes the commission to make regulations governing procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer.

The proposed rule affects Parks and Wildlife Code, Chapter 43.

§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 deer breeding facility.

(b) A person commits an offense if that person places or holds breeder deer in captivity at any place or on any property other than property for which a deer 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 breeder deer at another location for breeding, nursing, or veterinary purposes as provided in this subchapter.

(c) No breeder 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.

(d) Possession of a deer breeder’s permit is not a defense to prosecution under any statute prohibiting abuse of animals.

(e) No deer breeder shall exceed the number of breeder deer allowable for the permitted facility, as specified by the department on the deer breeder’s permit.

(f) This subsection does not apply to breeder deer lawfully obtained prior to June 21, 2005. Except as provided in this subsection, no person may:

(1) possess a deer acquired from an out-of-state source; or
(2) import or attempt to import deer from an out-of-state source.

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

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