Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to "engage in the business of breeding breeder deer in the immediate locality for which the permit was issued" and to "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation." As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer. The same is not true of other permits issued by the department that authorize possession of live deer and are affected by the proposed rules (DMP, Triple T), which authorize the trapping, temporarily detention, and release of deer, but unlike the deer breeder permit do not authorize a permit holder to buy or sell deer, or to exchange deer for anything of value. Thus, any adverse economic impacts to small and microbusinesses resulting from the rules would be limited to deer breeder permit holders.

For the purposes of this analysis, the department considers all deer breeders to be small or microbusinesses. The department has determined that proposed rules will affect 10 deer breeders. All 10 affected breeding facilities are in the SZ delineated by current rule; however, six of those breeding facilities would be located within the new CZ contemplated by the proposed amendments. Of those seven facilities, two hold TC 1 status, three hold TC 2 status, and two hold TC 3 status.

Under current rules, TC 1 facilities in a SZ may transfer or liberate breeder deer anywhere except in a CZ and TC 1 facilities in a CZ cannot receive deer from or transfer deer to any other location, but may liberate breeder to immediately adjoining acreage under shared ownership. The proposed amendments would not alter the current prohibition of the transfer of breeder deer to destinations outside the CZ, but would allow TC 1 facilities in a CZ to receive deer from and transfer deer to other deer breeders in the CZ, and to release deer within the CZ. Therefore, the adverse economic impact to the TC 1 facility that is currently in SZ 3 but would be located within the proposed new CZ would consist of the loss of any sales to deer breeders or release sites outside the CZ. The department does not require deer breeders to report financial information such as sales volume, income, or pricing; thus, it is impossible for the department to estimate the value of such lost sales, although based on anecdotal reports it could be anywhere from many hundreds of dollars to many thousands of dollars. The department also notes, however, that deer breeders are required to report the sites where breeder deer are released, and department records indicate that one of the TC 1 facilities in question has not, within the last two years, released breeder deer at any locations outside the proposed CZ. Therefore, if the deer breeder in question does not intend to sell breeder deer for release outside the proposed CZ, that deer breeder would not be affected by the proposed rules. The other TC 1 facility has in the past transferred deer to areas outside the proposed CZ and would be prevented from doing so under the proposed rules; however, that facility has also released deer to adjoining acreage. Since the rules as proposed do not prevent the facility from releasing breeder deer to adjoining acreage, the facility in question will still have the potential to release breeder deer to adjoining acreage in order to provide for-profit hunting opportunity, as well as the ability to transfer or release breeder deer within the CZ.

Under current rules, TC 2 deer breeding facilities in a SZ may receive deer from any deer breeding facility in the state and transfer or release breeder deer within the SZ, but are prohibited from transferring breeder deer outside the SZ. Also under current rules, TC 2 facilities in a CZ are prohibited from moving breeder under any circumstances. The proposed amendments would authorize TC 2 facilities within a CZ to release breeder deer to immediately surrounding acreage under the same ownership as the breeder facility, provided each deer has been subjected to a tonsil biopsy test for CWD within 60 days of release and received test results of not detected Therefore, the proposed amendments could result in adverse economic impacts for the three TC 2 facilities that are currently within SZ 3 but would be within the CZ contemplated by the proposed amendments, because those facilities are currently able to release breeder deer within SZ 3, but under the proposed rules would be able to release deer only to adjoining acreage owned by the permittee. Therefore, the adverse economic impact to the three TC 2 facilities that are currently in SZ 3 but would be located within the proposed new CZ would consist of the loss of any sales to deer breeders or release sites outside the CZ. As noted previously, the department does not require deer breeders to report financial information such as sales volume, income, or pricing; thus, it is impossible for the department to estimate the value of lost sales resulting from the proposed rules (which in any event would be hypothetical, since there is no way to know what might occur in the future), but based on anecdotal reports of the market value of breeder deer, the value of lost sales could be anywhere from many hundreds of dollars to many thousands of dollars. The department notes, however, that because deer breeders are required to report the sites where breeder deer are released or transferred, it is possible to estimate adverse economic impacts on the basis of individual breeders' transfer history, which indicate that all three of the affected TC 2 sites have released deer to acreage owned by the deer breeder adjoining the respective breeding facilities. Thus, the rules as proposed do not prevent the three TC 2 facilities from releasing breeder deer to adjoining acreage in order to provide for-profit hunting opportunity. The department also notes that if it can be determined that CWD has not been spread to additional segments of free-ranging deer populations, the need for the rules may no longer exist and they may be amended or repealed as necessary.

The rules as proposed will not result in adverse economic impacts to small and microbusinesses (i.e., deer breeders) in the SZ, since the rules as proposed alter only the boundaries of the current SZ and do not affect any deer breeders not currently affected by the rules in effect.

In the development of the proposed rules the department considered several alternatives to achieve the goals of the proposed rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

One alternative was to allow the emergency rules to expire after 120 days and revert to the current rules. This alternative was rejected because the presence of CWD in deer breeding facilities and free-ranging populations presents an actual, direct threat to free-ranging and farmed cervid populations and the economies that depend upon them. Although the current rules provide some level of monitoring and containment, the discovery of CWD in a free-ranging white-tailed deer in Medina County increases the concern that CWD has escaped containment. Therefore, because the department has a statutory duty to protect and conserve the wildlife resources of the state, the previous rules would not achieve the necessary level of vigilance needed to detect the presence and/or spread of CWD. Therefore, this alternative was rejected.

Another alternative considered was to simply prohibit the movement of deer in or out of the current SZ. While this alternative would significantly reduce the potential spread of CWD, it would also have the simultaneous effect of preventing landowners and land managers from implementing popular management strategies involving the movement of deer, and would deprive deer breeders across a much larger area of the ability to engage in the business of buying and selling breeder deer. Therefore, this alternative was rejected because the department determined that it placed an avoidable burden on the regulated community.

The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not result in direct impacts to 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. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department's website at www.tpwd.texas.gov.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1, and Chapter 61.