Texas Parks and Wildlife Commission
Regulations Committee

May 29, 2002

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744


            7            BE IT REMEMBERED that heretofore on the 

            8   29TH day of MAY 2002, there came on to be heard 

            9   matters under the regulatory authority of the Parks 

           10   and Wildlife  Commission of Texas, in the commission 

           11   hearing room of the Texas Parks and Wildlife 

           12   Headquarters complex, Austin, Travis County, Texas, 

           13   beginning at 9:02 a.m., to wit:


                Chair:   Katharine Armstrong Idsal, San Antonio, 
           18                Texas, Chairman
                         Ernest Angelo, Jr., Vice Chairman, Midland, 
           19                Texas       
                         John Avila, Jr., Fort Worth, Texas 
           20            Joseph B.C. Fitzsimons, San Antonio, Texas
                         Alvin L. Henry, Houston, Texas (Absent)  
           21            Philip Montgomery, III, Dallas, Texas
                         Donato D. Ramos, Laredo, Texas
           22            Kelly W. Rising, M.D., Beaumont, Texas
                         Mark E. Watson, Jr., San Antonio, Texas
                         Robert L. Cook, Executive Director, and 
           25   other personnel of the Parks and Wildlife 

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            1                       MAY 29, 2002

            2                         *-*-*-*-*

            3                    REGULATIONS MEETING

            4                         *-*-*-*-*

            5                  CHAIRMAN IDSAL:  Good morning, 

            6   everyone.  The meeting is called to order.  Before 

            7   proceeding with any business, Mr. Cook has a 

            8   statement.

            9                  MR. COOK:  Madam Chairman, a public 

           10   notice of this meeting pertaining to all items on 

           11   the proposed agenda has been filed in the office of 

           12   Secretary of State as required by Chapter 551 of the 

           13   Government Code in the first U.S. Open Meetings Law.  

           14   I would like for this action to be noted in the 

           15   official record.

           16                  CHAIRMAN IDSAL:  Thank you, Mr. Cook.  

           17   We will begin today with the regulations committee.  

           18   Mr. Fitzsimons?

           19                  COMMISSIONER FITZSIMONS:  Thank you, 

           20   Madam Chair.  Call the regulations committee to 

           21   order at 9:02.  The first order is approval of the 

           22   committee minutes from the previous meeting.  Do I 

           23   have a motion to approve those minutes? 

           24                  COMMISSIONER MONTGOMERY:  So moved.

           25                  COMMISSIONER RISING:  Second.

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            1                  COMMISSIONER FITZSIMONS:  All in 

            2   favor, aye.  All opposed.  Motion carries. 

            3                (Motion passed unanimously.)

            4                  COMMISSIONER FITZSIMONS:  Our first 

            5   item, chairman's charges.  Bob?

            6      AGENDA ITEM NO. 1 - BRIEFING - CHAIRMAN'S 

            7      CHARGES.

            8                  MR. COOK:  Mr. Chairman, thank you, 

            9   sir.  I have a couple of items to report to you this 

           10   morning on our regulations committee chairman's 

           11   charges, both having to do with the implementation 

           12   provision of the Sunset Bill, Senate Bill 305.  The 

           13   charges associated with Senate Bill 305 are assigned 

           14   as projects for this year's class of natural 

           15   leaders.  They will be presenting the results of 

           16   their projects at a regular ^ lunch meeting each 

           17   Monday throughout the month of June.  And we will, 

           18   of course, provide you a summary of that information 

           19   as we get those projects completed. 

           20                  Another one of the issues under the 

           21   Sunset Bill was to conduct a comprehensive five-year 

           22   study of shrimp resources of the state, including 

           23   the shrimp population and the shrimp industry.  

           24   Coastal fisheries staff has held meetings with 

           25   members of the shrimp industry last week to obtain 

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            1   input on the major concerns facing the industry.  

            2   Meetings were held in five locations; Port Arthur, 

            3   Dickinson, Port Lavaca, Rockport, and Port Isabel.  

            4   268 people attended and voiced numerous concerns, 

            5   including the negative impacts of imports on 

            6   domestic prices and consumer demand, the need for 

            7   country of origin package labeling, presence of 

            8   banned antibiotics in imported farm-raised shrimp, 

            9   pollution, shrimp farm effluence, lack of marketing 

           10   in Texas wild caught shrimp, fraud and packaging, 

           11   new shrimp regulations, need for Gulf-wide 

           12   management, fresh water inflow issues, and increased 

           13   licensed fees.  The input will be used to complete 

           14   the comprehensive shrimp studies required by the 

           15   Legislature.  And that's all I have for you today, 

           16   sir. 

           17                  COMMISSIONER FITZSIMONS:  Thank you, 

           18   Bob.  Any questions or comments for Bob on the 

           19   chairman's charges?

           20                  COMMISSIONER ANGELO:  Excuse me.  

           21   With respect to the shrimp issue there, do we have 

           22   any authority regarding some of those points that 

           23   you just mentioned; for instance, the question of 

           24   the imports, the antibiotics and that sort of thing?  

           25   Is that something we've got any say about? 

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            1                  MR. COOK:  I'll probably need some 

            2   help here from Hal.  But I believe that the import 

            3   issue, health and food would be involved in that.  

            4   Hal, would you step up and help me out here?  Most 

            5   of the other issues we do have -- we are involved in 

            6   and do have authority on.  But, Hal, speak to that 

            7   one. 

            8                  MR. OSBURN:  Hal Osburn, Coastal 

            9   Fisheries Division Director.  The Department of 

           10   Health in Texas is in contact about the antibiotics.  

           11   The Department of Agriculture in Texas has been 

           12   contacted about the imports.  So I don't believe 

           13   that the Commission has any authority relative to 

           14   those issues. 

           15                  COMMISSIONER ANGELO:  That's what I 

           16   presumed, but I -- thank you. 

           17                  COMMISSIONER FITZSIMONS:  Any other 

           18   questions for Bob regarding those issues, chairman's 

           19   charges in Senate Bill 305.  Thank you, Bob.

           20                  Our next order is a briefing from 

           21   Vernon Bevill on the Migratory Game Bird 

           22   Proclamation.  Vernon?

           23      AGENDA ITEM NO. 2 - 2002-2003 MIGRATORY GAME BIRD 

           24      PROCLAMATION - EARLY SEASON

           25                  MR. BEVILL:  Mr. Chairman, members of 

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            1   the Commission, my name is Vernon Bevill and I'm the 

            2   game bird program director.  I'm before you today to 

            3   provide you a briefing item on where we stand in 

            4   terms of the implementation of the 2002-2003 

            5   Migratory Game Bird Proclamation.

            6                  With regard to changes in seasons and 

            7   bag limits issue, as you recall, last year we went 

            8   through a very exhaustive process to look at the 

            9   dove season proposed.  And we're not -- with the 

           10   changes made last year, we are not proposing any 

           11   additional changes to speak of this year.  As you 

           12   can see, the -- with calendar shift, the direction 

           13   we're heading is to hold the line on dove season, 

           14   dates and bag limits.

           15                  With regard to the special white wing 

           16   season, we are proposing the first two full weekends 

           17   of September in the four counties along the 

           18   Rio Grande River.  This an afternoon-only hunting 

           19   period for these -- for these white wing special 

           20   hunts.

           21                  At this time, we don't know what the 

           22   breeding population of blue wing teal is.  There's a 

           23   threshold level that has to be met before we gain a 

           24   16-day teal season.  There's a potential that the 

           25   ratio may be back -- put us back in the nine-day 

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            1   season.  If we go back to a nine-day season, there's 

            2   a standing commission policy that we would open on 

            3   the third Saturday in September.  So the dates that 

            4   you're looking at there would shift if we go back to 

            5   the nine-day season, move it forward, the opening 

            6   day, by one week.

            7                  At this time, the Fish and Wildlife 

            8   Service has not met to establish the formal seasons 

            9   and bag limits for early season species; as well our 

           10   Texas Register is still open for a few more days for 

           11   additional comments.  So this is not an action item.  

           12   Mr. Cooke will have to make a decision on these 

           13   proposals in late June or beginning of July based on 

           14   the meetings yet to come and the deadline regarding 

           15   our Texas Register public comment period.  If there 

           16   are any questions, I'd be glad to answer them. 

           17                  COMMISSIONER FITZSIMONS:  Vernon, 

           18   when is the service scheduled to meet? 

           19                  MR. BEVILL:  The Fish and Wildlife 

           20   Service meets about the third week in June.  And 

           21   they will formalize the early season proposed at 

           22   that time. 

           23                  COMMISSIONER FITZSIMONS:  Any 

           24   questions for Vernon? 

           25                  CHAIRMAN IDSAL:  You're going to move 

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            1   up the teal season if necessary?  Is that right? 

            2                  MR. BEVILL:  If the Fish and Wildlife 

            3   Service only grants nine days, the opening date 

            4   would --

            5                  CHAIRMAN IDSAL:  You'll push it up 

            6   from the opening day forward.

            7                  MR. BEVILL:  Yes.

            8                  CHAIRMAN IDSAL:  Okay.  Thank you, 

            9   Vern.

           10                  COMMISSIONER FITZSIMONS:  Any 

           11   indication that that might be the case on the teal? 

           12                  MR. BEVILL: The teal population, 

           13   which has been at an all time high, as you know, for 

           14   the past several years, was sliding backwards.  And 

           15   this year -- each year the Fish and Wildlife Service 

           16   conducts a breeding bird survey and pond counts in 

           17   May.  The areas that they survey, that transects 

           18   that they survey for all species are dryer this year 

           19   than it's been.  Parts of Canada are extremely dry 

           20   again.  So we anticipate some reductions in duck 

           21   seasons in general.  And the threshold for us to 

           22   have a 16-day teal season is a breeding population, 

           23   I believe, of 4.7 million.  So right now it's up in 

           24   the air.  It could well be that we've got plenty of 

           25   teal, but if they're in the wrong place due to a 

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            1   late spring, that I hear is taking place in that 

            2   part of the world, if they're in the wrong place and 

            3   don't get counted, the threshold is not met and we 

            4   would go back to nine days.  So we're waiting to see 

            5   how that works out. 

            6                  COMMISSIONER FITZSIMONS:  Do we have 

            7   much feedback on our late dove seasons from last 

            8   year or people that -- we had a lot of comments 

            9   beforehand.  Much after? 

           10                  MR. BEVILL:  We had, I think, 36 

           11   comments on dove season proposals for this year.  

           12   And as always, there's a little bit of a mixture.  

           13   Once you make a significant change in seasons and 

           14   bag limits and zone, there's a little -- you get a 

           15   little bit of a comment coming back to you, "Well, 

           16   we didn't want that change."  But it's very minor.  

           17   If you will recall, we had thousands of comments 

           18   last year compared to only 36 this year.  And it's 

           19   kind of a mixed bag.  We heard a little bit from 

           20   those who liked 15 and 60.  But we also heard from 

           21   people who liked the change, 12 and 70.  So there 

           22   was no compelling reason to re-address this issue. 

           23                  COMMISSIONER FITZSIMONS:  Thank you, 

           24   Vernon. 

           25                  MR. COOK:  In general, I would say we 

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            1   heard very little.  It was not a -- it was not an 

            2   issue one way or the other at this time.  So we 

            3   could make an equal number mad and an equal number 

            4   happy, and we get a pretty good meeting. 

            5                  COMMISSIONER FITZSIMONS:  That's par 

            6   for the course.  That's good.

            7                  Thank you, Vernon.  Mr. Chair, 

            8   there's no action item on that item.  If there's no 

            9   other questions for Vernon, we'll move on to other 

           10   action item, Legislative Rules Review-Rulemaking 

           11   Chapter 65, Jerry Cooke. 


           13      CHAPTER 65, SUBCHAPTERS A, N, AND Q.

           14                  DR. COOKE:  Mr. Chairman and members, 

           15   my name is Jerry Cooke, game branch chief of the 

           16   wildlife division, and I'll presenting to you some 

           17   information relating to the rule review of Chapter 

           18   65. 

           19                  Section 2001.039 of the Government 

           20   Code requires that each state agency in Texas review 

           21   all of their regulations at least once every four 

           22   years.  At our January meeting, we did, in fact, 

           23   propose to do precisely that.  Part of that rule 

           24   review is also to determine if the original 

           25   justification for a rule still exists.  After the 

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            1   review, the rule is either readopted as-is, is 

            2   amended to correct some deviation in the rule, or to 

            3   simply repeal it. 

            4                  During our review process, we found 

            5   three rules for which the original justification was 

            6   unclear.  Its current justification was also 

            7   unclear.  This regulation in question was to 

            8   establish closed season for game animals, game 

            9   birds, and fur bearers on the state-owned riverbeds 

           10   of Dimmit, Uvalde, and Zavala Counties. 

           11                  In April, you authorized us to 

           12   publish a proposed rule change for those particular 

           13   sections in those proclamations.  What the amendment 

           14   that was proposed would do is to set a date certain 

           15   in which -- in which the rule would cease to be 

           16   effective.  In other words, September 1, 2003 is a 

           17   proposed date for which that rule would no longer be 

           18   effective.  Should, through further study or further 

           19   review or department studies, we find that, in fact, 

           20   the justification is intact, then we'll come back 

           21   before you at a later time to reestablish the rule. 

           22                  So basically the amendment of the 

           23   proposed motion would be the Texas Parks and 

           24   Wildlife Commission would adopt this change, should 

           25   you choose to do so on the morrow.  If you have any 

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            1   questions, I will be more than happy to answer them, 

            2   if I could. 

            3                  COMMISSIONER FITZSIMONS:  Any 

            4   questions for Jerry on this issue? 

            5                  If there are no further questions of 

            6   discussion, without objection I'll place this item 

            7   on the Thursday commission meeting agenda for public 

            8   comment and action.  Thank you, Jerry. 

            9                  DR. COOKE:  Thank you, sir. 

           10                  COMMISSIONER FITZSIMONS:  Don't move. 

           11                  DR. COOKE:  I wasn't. 

           12                  COMMISSIONER FITZSIMONS:  The next 

           13   was cervid disease issues.  And Ken Waldrup from the 

           14   Texas Animal Health Commission will be joining me 

           15   and --

           16                  DR. COOKE:  And also Karl Kinsel from 

           17   the Texas Deer Association.

           18                  CHAIRMAN IDSAL:  Morning.  Thank 

           19   you-all for coming. 

           20      AGENDA NO. 4: CERVID DISEASE ISSUES

           21                  DR. COOKE:  Again, my name is Jerry 

           22   Cooke, game branch chief of the wildlife division 

           23   presenting this item -- or introducing this them.  

           24   Sitting with me is Karl Kinsel with the Texas Deer 

           25   Association and Dr. Ken Waldrup with the Texas 

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            1   Animal Health Commission, also recognizing that 

            2   Commissioner Wood of the Texas Animal Health 

            3   Commission is present at the meeting, as well.  And 

            4   we welcome her assistance in these items.

            5                  At the April commission meeting, 

            6   action concerning proposed definition of a healthy 

            7   condition for the Scientific Breeder Permit 

            8   Proclamation was proposed, along with prohibitions 

            9   related to actions by scientific breeder permit 

           10   holders whose facilities did not meet that 

           11   definition.  This action was postponed primarily to 

           12   allow the Texas Deer Association the opportunity to 

           13   bring its members into a voluntary program with the 

           14   Texas Animal Health Commission.

           15                  This item is brought to you today to 

           16   allow some of our discussions and deliberations to 

           17   be clear to you.  Dr. Waldrup is going to be 

           18   presenting the information that we've arrived at 

           19   related to surveillance across the state for chronic 

           20   waste disease and also to allow Karl to bring you 

           21   up-to-date with the activities of his organization 

           22   this morning.  So Ken? 

           23                  MR. WALDRUP:  Mr. Chairman, 

           24   Commissioners, thank you very much on behalf of the 

           25   Texas Animal Health Commission for allowing us to 

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            1   come and present this to you.  And what I'd like to 

            2   do is just visit with you a bit on the primary issue 

            3   here, and the major issue of concern, which seems to 

            4   be chronic wasting disease.  Chronic wasting disease 

            5   is what we call a transmissible spongiform 

            6   incepalopathy of deer and elk and has been found in 

            7   captive in free-ranging animals in the following 

            8   states, as you can see there; primarily Colorado, 

            9   Wyoming, and Nebraska, comprise an area of where we 

           10   know that this disease is endemic in wild deer and 

           11   elk.  Alberta and Saskatchewan, Canada have also had 

           12   problems with this, both in farmed and free-ranging  

           13   cervids.  Thank goodness, at this point in time, CWD 

           14   has not been found in Texas.  And additionally, to 

           15   this point in time, there's no evidence that CWD 

           16   poses a public health threat.  But it still is a 

           17   very great concern to lots of sections of the public 

           18   regarding this disease and how it would affect deer 

           19   populations, elk populations, and even public 

           20   health.

           21                  As always, Texas has some unique 

           22   challenges with regard to this.  Texas has the 

           23   largest population of free-ranging white-tailed deer 

           24   in North America.  We also have the largest 

           25   populations of captive cervids in North America.  We 

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            1   also have unique legal situation in that the 

            2   authority to regulate white-tailed deer rests with 

            3   your commission, while the authority to deal with 

            4   disease programs for livestock and for free-ranging 

            5   species resides with the Texas Animal Health 

            6   Commission in cooperation with USDA.  So we sort of 

            7   have a split jurisdiction here. 

            8                  But I also have to say it's been very 

            9   gratifying to see the cooperation that has come 

           10   together with the combined multi-agency approach.  

           11   We feel that there are really two facets to this 

           12   whole thing.  First, to find the disease, if indeed 

           13   it is in Texas; and secondly, to deal with it should 

           14   we find it.  Okay.  In order to find it, we feel 

           15   there is really three main prongs to this: increased 

           16   surveillance in the free-ranging deer populations, 

           17   increased surveillance in captive deer populations.  

           18   And with regard to this commission that's primarily 

           19   the scientific breeder permit holders.

           20                  So in -- as a result, from lots and 

           21   lots and lots of discussions, we are proposing a 

           22   voluntary whitetail breeders chronic wasting 

           23   disease/tuberculosis complete herd monitoring 

           24   program.  We developed some scenarios regarding the 

           25   disease that if indeed it is here, at what level 

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            1   should we expect to find it?  And, again, a lot of 

            2   discussion, we recommend that we assume a 2 percent 

            3   prevalence.  And what that means is that 2 percent 

            4   of the scientific breeder herds could have CWD.  And 

            5   that's not an accusation.  Please understand, that's 

            6   just a starting point.  And if we make that 

            7   assumption, if we get 127 of the 467 current permit 

            8   holders enrolled, we should be able to find the 

            9   disease if it is indeed in that 2 percent level.  We 

           10   would also incorporate tuberculosis surveillance in 

           11   samples that would be submitted for CWD.

           12                  The basic requirements of the 

           13   programs are identification of all the animals.  But 

           14   that's really following right along with your 

           15   present regulations for scientific breeder permits.  

           16   A complete annual inventory, and this is an 

           17   animal-by-animal inventory.  Submission of samples 

           18   from all deaths over 12 months of age.  The other 

           19   aspect to this is that the herd owners bear the cost 

           20   of the routine testing.  That is, if they have an 

           21   animal that runs into the fence and breaks its neck, 

           22   the owner is responsible for the cost of that 

           23   testing.  Now, if they do report a suspect, we have 

           24   funds available that state or federal government 

           25   could support that testing.

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            1                  And basically at this point, that's 

            2   our recommendation, that we start at this 2 percent 

            3   level of surveillance in the scientific breeder 

            4   permit holders.  I think there has been outstanding 

            5   progress made with regard to development of this 

            6   program and certainly the acceptance. 

            7                  And we would like to acknowledge the 

            8   folks listed here.  And there are others.  I'm sure 

            9   I've left some important ones out.  But these are 

           10   folks who have really risen to the occasion to be 

           11   involved in these discussions.  Thank you. 

           12                  MR. KINSEL:  Karl Kinsel, Texas Deer 

           13   Association, executive director.  And I'll give a 

           14   very quick chronological review of what we've done 

           15   since we were last asked here to participate at the 

           16   last commission meeting.  After that commission 

           17   meeting, we immediately went forth to the Exotic 

           18   Wildlife Association Convention and to other 

           19   conferences as well as three regional meetings for 

           20   TDA.  Our first chore was, in the matter of a month, 

           21   to make sure we got the information out and it was 

           22   understood.  That is, by far, the hardest challenge, 

           23   is to make sure that people understand both the 

           24   necessity of our working together, as well as trying 

           25   to do the best we can on a voluntary situation when 

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            1   most people do not realize the importance, the 

            2   significance, nor that there is any legal necessity 

            3   for us to do that.  We still want to be extremely 

            4   proactive and take the lead.

            5                  Going forward in that, just for 

            6   example, we put together so that we would make sure, 

            7   at the direction of Chairman Idsal, that we involve 

            8   all associations, not just ourself.  It's important 

            9   that communication stays among all associations, as 

           10   well as private individuals.  A meeting was held 

           11   prior to that at Joe Fitzsimons' offices where we 

           12   discussed things openly. 

           13                  We've since put things up a bulletin 

           14   board on the Website so that any one individual as 

           15   well as any association could express their views.  

           16   That is certainly open to anyone.  And you get 

           17   everything from radical comments to rationale on 

           18   there, but it's been a good thing so that we could 

           19   entertain it all. 

           20                  Going forward from there, we expected 

           21   quickly basically in week three to try to meet with 

           22   Animal Health Commission.  Had a little difficulty 

           23   in doing that, but it was at no fault of the 

           24   Commission.  They had a lot of things they had to 

           25   get straight and has really been under the gun, 

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            1   Texas Animal Health Commission is.  Texas Animal 

            2   Commission and Texas Parks & Wildlife met, laid out 

            3   some ground rules and some things, some things we 

            4   agreed with, some things we said were impossible but 

            5   we sure wanted to try to address how to make those.  

            6   Ken Waldrup, commend him, responded and drove four 

            7   hours and came to us and met with us.  We worked 

            8   through them.  I do not think there is a need to 

            9   address them specifically, but to let you know other 

           10   than the bulletin board and the communication, 

           11   basically what we are working on is the chronic 

           12   wasting disease, complete monitored herd cervidae 

           13   herd agreement.  The things in there, there is 

           14   really nothing that we are opposed to.  Basically 

           15   its presentation was very confusing to a lot of our 

           16   members that we went to, and rightly so, just in the 

           17   language, not the presentation.

           18                  So in meeting with Dr. Waldrup on 

           19   that, we wanted a clarification letter.  Instead of 

           20   trying to amend that form that is already in place 

           21   for some elk breeders and some whitetail, we wanted 

           22   a clarification letter calling this a voluntary 

           23   whitetail, as well as explaining fee cost basis, as 

           24   well as putting in the buy levels as well as the 

           25   restriction levels on ident or classifications.  I 

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            1   guess one of the things we really have not dealt 

            2   with entirely, but we've dealt with in some, as is 

            3   obvious on the bulletin board Website, is, most 

            4   people say it's hard for us to talk about the horse 

            5   without talking about the cart.  We're putting the 

            6   cart in front of the horse when we talk about 

            7   identification and surveillance and testing when we 

            8   don't know what we're doing about depopulation and 

            9   indemnity.  Although we know there are things in 

           10   place for that, to some degree, the completeness of 

           11   that is not there yet.  But tremendous strides have 

           12   been made.  We worked hard. 

           13                  Even without the understanding of 11 

           14   issues, all of which are mostly minor, we still have 

           15   signed up 31 members and we've got a request form of 

           16   about 17 to 20 other members -- I don't remember 

           17   exactly -- on that, that says, yes, once we get this 

           18   clarification letter, we'll immediately sign up.  

           19   And we've had meetings and three different region 

           20   meetings we called immediately where we've had over 

           21   200 different people attend, call that 70 breeders 

           22   that would be willing to sign up also once they get 

           23   these clarifications.  And I believe they are 

           24   forthcoming without any problem.  And I hope we can 

           25   be in compliance with that.  Thank you. 

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            1                  CHAIRMAN IDSAL:  Mr. Regulations 

            2   Chairman, could I ask a question, please? 

            3                  COMMISSIONER FITZSIMONS:  Madam 

            4   Chair, please. 

            5                  CHAIRMAN IDSAL:  Karl, thank you for 

            6   coming.  And I do have a comment to follow up on 

            7   what Ken said about the tremendous cooperation that 

            8   we've seen between the various groups and the 

            9   leadership that so many people have been willing to 

           10   take to get us to where we need to be.  I think it's 

           11   a wonderful example of leadership from many people 

           12   involved.

           13                  I'd like a little more fleshing out, 

           14   Karl, of the atmosphere within your membership in 

           15   terms of -- I'm gratified to hear that you've got up 

           16   to 70 people that may well sign on.  How do you feel 

           17   going beyond the 70 to the hundred and -- what was 

           18   the -- the 127 that we would like to have for the 2 

           19   percent? 

           20                  MR. KINSEL:  I'd be glad to answer 

           21   that and I'll answer that a little bit more in 

           22   detail and I'll answer it very candidly, if I could.  

           23   Shut me off when time is running long.

           24                  But the feeling amongst a good many 

           25   of the members is, where is the science that tells 

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            1   us that this is mandatory or where is the legality 

            2   that makes us do that, and therefore, prejudicially, 

            3   why are we doing it when we are such an 

            4   insignificant number compared to four and a half 

            5   million deer in the state, and where is the State's 

            6   participation on this if, in fact, we're going to do 

            7   it.  Is it, in fact, that we're doing it simply 

            8   because we can and they can't?  You know what?  

            9   Regardless of the answer to all of those questions, 

           10   we're willing to try. 

           11                  Those questions, those concerns, 

           12   those issues, which are often responsive to when you 

           13   threaten anyone's -- even theoretically threatening 

           14   anyone's love, and this is love.  Very -- thirdly to 

           15   God and children, I think this is a passion for many 

           16   people, and for some it is an extreme livelihood, 

           17   their investments, their retirements.  They're 

           18   looking forward to this entity of breeding deer on 

           19   small acreage as a way to produce an income on small 

           20   acreage, something that we've all strived for our 

           21   whole life, with the hardships within the cattle 

           22   business, which my family and many of them continue 

           23   to strive for, unless you're really big in it, it's 

           24   really hard. 

           25                  So we're not just talking about a 

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            1   disease issue, although that's what we're focusing 

            2   on.  We're talking about their ability to produce 

            3   income.  That's the way they see it, the way they 

            4   feel it.

            5                  Reading the -- and to answer your 

            6   question specifically, when they read the chronic 

            7   wasting disease complete and monitored cervidae herd 

            8   agreement, one of the things that jumped out and 

            9   stopped them immediately was retagging and 

           10   reidentification of animals.  There is nothing wrong 

           11   with the language here that Rick Smathers, I'm 

           12   assuming, has written, but it is not user friendly.  

           13   And so when people immediately look at that, they 

           14   say, well, what's wrong with our tagging system?  

           15   Why do we have to retag our animals?  Why do we have 

           16   to put PA and RT and all these things on our tags on 

           17   our new animals? 

           18                  In reading that, those 

           19   identifications go on the paperwork.  The retagging 

           20   is not necessary because TP&W has a tagging system 

           21   that works and works well.  It took 30 minutes 

           22   apiece to explain that to every one of the people 

           23   I've talked to.

           24                  So in the clarification letter, we'll 

           25   address that and won't have to explain it one at a 

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            1   time to everyone.

            2                  There was another issue in there that 

            3   was distasteful to them, but swallowable or 

            4   understandable, and that is, herd status.  And 

            5   basically if someone is in it for three years, let's 

            6   say, and have been complying, they have level C.  

            7   They cannot go buy an animal.  Let's say he's a 200 

            8   B&C three-year-old and they want him, but he's level 

            9   A.  Without reducing their level C to level A any 

           10   addition into that herd, that's hard for a business 

           11   to look at, because it limits your business 

           12   opportunities.

           13                  So it took a good bit of convincing 

           14   to understand why we have to have it that way.  But 

           15   common sense has prevailed.  We understand that.  

           16   But we asked for the flip side of that, as well, not 

           17   just a negative of what would happen to us in a 

           18   downgrade.  But let's use it as a positive, as well.  

           19   The carrot versus the stick, if you will, that if a 

           20   new breeder came into the business and he bought 

           21   deer from someone in level C, he would obtain level 

           22   C.  Nothing wrong with that, makes absolute sense.  

           23   Just needs to be in here so that it helps them -- it 

           24   makes it a little more palatable. 

           25                  Here are the issues that were still 

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            1   tough.  Why should the breeder have to pay when 

            2   we're doing something voluntarily that is not 

            3   critical, and when we're doing it in excess of other 

            4   entities?  We still swallowed that one, too.  

            5   There's no problem with that.  We will pay.  The 

            6   question is, how do we comply with what it is we're 

            7   going to pay for?  What number of hours, how is it 

            8   submitted, what length of time? 

            9                  Protocol for submission of a dead 

           10   animal is tough, at best, even if we know the 

           11   protocol and try to do it, because we've got to find 

           12   the animal before he dies, you know, almost to get 

           13   it in there.  And animals just -- we just don't find 

           14   them that way.  That's just not the way it tangibly 

           15   happens.

           16                  Ideally, to discover the disease, 

           17   although ideally we really don't want to, is if we 

           18   clinically can observe something and call the 

           19   State -- and the State has been very -- they have 

           20   said, look, in that situation we're paying all 

           21   costs, we're coming out, we're taking care of it.

           22                  So I would ask the TP&W to rest 

           23   assured that if we've got clinical situations, I 

           24   think we've got answers.  In these other situations, 

           25   we've got hardships, but they may not be our 

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            1   clinical, real problems, anyway.  They may be the 

            2   doe that ran into the fence the night before and we 

            3   didn't find her until two days later and then how do 

            4   we submit that and what do we do and it's too late?  

            5   And we always are used to paying a couple hundred 

            6   dollars and getting back from the labs in their 

            7   favorite word, inconclusive.  But we can do that.   

            8                  If the disease is covered is the 

            9   issue that we're going to have to really hardily 

           10   address.  I agree we've got to get started with our 

           11   surveillance and monitoring.  Our identification is 

           12   already in place.  We know these animals better than 

           13   anyone knows their own.  So I don't see any problems 

           14   there.  But when you go to depopulate a herd and the 

           15   surrounding herds, be they in the adjacent pens or 

           16   someone's adjacent low fence property that extends 

           17   throughout the county, how do you do that?  Ken has 

           18   an answer for us at this time, although it cannot be 

           19   cast in stone.  It is opinion on how it could happen 

           20   or should happen.  We needed that clarification for 

           21   people to at least understand.  We know that minds 

           22   will change and things will change and hopefully 

           23   they will change for the better as we discover more.  

           24   But in the clarification letter, we will address 

           25   those.

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            1                  I can say, without reservation, that 

            2   the $3,000 cap on indemnity is severely insufficient 

            3   for a good many, if not the majority, of the 

            4   white-tailed breeder animals that are in captivity.  

            5   But for clarification also, we're putting in there 

            6   that there can be a hold order on the animals that 

            7   are suspect so long, then they cannot be transferred 

            8   or moved or anything so that we're not endangering 

            9   anything any further.  But it's not an automatic, 

           10   well, we found one and we're going to come kill the 

           11   rest of them.  That will not be tolerated at this 

           12   time.  Should we address that further? 

           13                  DR. WALDRUP:  Well, basically, 

           14   Commissioners, if we do find a positive, okay, then 

           15   there actually are two choices.  The population is 

           16   no longer (inaudible).  It's offered.  That's the 

           17   primary means that's been used with captive herds 

           18   here in the US to try to deal with the infection.  

           19   But, for example, there's an elk herd in Oklahoma 

           20   that was diagnosed four years ago.  It's still 

           21   there.  Now, it's under a permanent quarantine.  And 

           22   that may be the other choice that the producer in 

           23   this case has.

           24                  At the moment, we do not have a live 

           25   animal test.  Madam Chairman, you asked me the other 

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            1   day about that.  The very next day, we got a call 

            2   from a very large veterinary diagnostic company, 

            3   requesting some negative samples for us.  They're 

            4   trying to develop a test.  So, you know, hopefully 

            5   we could have a live animal test at some point in 

            6   time.  If we found a positive, then we could go test 

            7   the rest of those animals and simply remove the 

            8   other positives.  We don't have that today.  Let's 

            9   hope we have it tomorrow. 

           10                  COMMISSIONER MONTGOMERY:  Are you 

           11   aware of any national effort to really accelerate 

           12   the scientific research in this area to have a 

           13   unified national effort to figure this out? 

           14                  DR. WALDRUP:  Oh, yes, sir. 

           15                  COMMISSIONER MONTGOMERY:  What is 

           16   going on there? 

           17                  DR. WALDRUP:  As of right now, I 

           18   think the twenty -- on the 23rd of this month, there 

           19   was a national group that was convened primarily of 

           20   Department of the Interior and USDA.  But they have 

           21   also requested assistance from state veterinarians, 

           22   including Dr. Logan.  I have an item for review on 

           23   my desk as soon as I get home submitting comments to 

           24   that.  So there is a national effort ongoing. 

           25                  COMMISSIONER FITZSIMONS:  Ken, could 

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            1   you discuss a little bit the options if we do find a 

            2   positive, maybe comparing the situation in Wisconsin 

            3   today, where we do know -- maybe have some idea of 

            4   what may lay ahead in the even we do find some 

            5   positives?  You mentioned depopulation, number one.  

            6   Permanent quarantining, number two.

            7                  DR. WALDRUP:  Permanent quarantine, I 

            8   think, would be an option for, say, a high fence 

            9   facility, scientific breeder.  The situation in 

           10   Wisconsin was initially found in free-ranging deer.  

           11   So, again, I -- that's a fair template for what we 

           12   should expect here.  If we find a positive in 

           13   interfering for deer on public land, I think some 

           14   very intensive sampling would be appropriate.  And 

           15   that's exactly what Wisconsin has done, but I think 

           16   that's been to their advantage.  The first animals 

           17   that were found was three out of 26.  And roughly 10 

           18   percent, that got a lot of people very worried.

           19                  There are over a thousand samples now 

           20   and only 14 positives.  That's down around 1 

           21   percent.  Okay.  That's a whole lot easier to 

           22   handle. 

           23                  COMMISSIONER FITZSIMONS:  All right.  

           24   You mentioned the 127 of the 426 scientific breeder 

           25   quarantine as being that of perpetuity to pick up an 

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            1   incidence of occurrence of 2 percent.  How about in 

            2   free-ranging, because we've talked about the testing 

            3   of animals killed in wildlife management areas, 

            4   other public hunt areas where we have the 

            5   opportunity to do that?  What would that require? 

            6                  DR. WALDRUP:  Commissioner, it's 

            7   basically mathematics.  There's some equations that 

            8   you plug into your -- number one, your estimated 

            9   population, and then again this expected prevalence 

           10   level.  And literally it just spits you a number out 

           11   at the bottom.  And so per each management area or 

           12   county, that's what we're having to do. 

           13                  And right now Dan Baca and I and Dr. 

           14   Cooke are working on a risk analysis that's 

           15   primarily based on the import of deer and elk in two 

           16   certain counties and the deer population within 

           17   those counties, and trying to just establish a 

           18   ranking of where we can best target this 

           19   surveillance. 

           20                  COMMISSIONER FITZSIMONS:  So if I 

           21   follow you, you look at counties where there have 

           22   been importations -- and how many years of records 

           23   to you have there? 

           24                  MR. DABNEY:  For elk, we have since 

           25   1997.

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            1                  COMMISSIONER FITZSIMONS:  All right.  

            2   And then you would have a monitoring system of 

            3   free-ranging and wildlife management areas or public 

            4   hunts that we have in that area that we're 

            5   following? 

            6                  DR. COOKE:  Well, basically, 

            7   regardless of the surveillance approach we take, 

            8   there's going to be a dollars and cents value on it.  

            9   And you can only go as far as you have dollars for.  

           10   However, this information can accumulate through 

           11   time.  It's not like you've got to go get 5,000 

           12   animals next year.  We get it over a period of time, 

           13   we'll be getting the same assessment, because this 

           14   is a slow disease.  This is not one of these acute 

           15   type things like blue tongue or tyleria.

           16                  So, for instance, in our last 

           17   conversation we were talking about, over a period of 

           18   time, if we could look at as many as 200 animals per 

           19   ecoregion, particularly focusing on these counties 

           20   of highest risk, the surveillance that will be done 

           21   by the breeders certainly will count in favor of 

           22   that, which is -- could be substantial.  We have 

           23   management area hunts in some of those areas.  

           24   That's where we're going to focus to begin with.  

           25   And if there is USDA money made available, at some 

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            1   future date, we'll add that to our effort.

            2                  But basically, as Karl points out, 

            3   what we're doing now is just touching the water the 

            4   first time.  We're just looking to see what we have, 

            5   and we're assessing what we could get to.  But there 

            6   will be tests of animals taken in our public hunts. 

            7                  COMMISSIONER WATSON:  Well, Jerry, in 

            8   all your conversations now about the scientific 

            9   breeder permits, which are the white-tails, so 

           10   what's your position of what's -- what's the 

           11   position of EWA and what are you doing about that? 

           12                  DR. WALDRUP:  Excellent question, 

           13   Mr. Watson.  We certainly recognize, number one, 

           14   Karl said to me very early in this piece, it feels 

           15   like y'all are picking on us.  And we -- my agency 

           16   feels like the scientific breeders have a couple of 

           17   risk factors.  Number one, they're the primary group 

           18   that bring in deer, white-tails from out of state 

           19   and they're the ones that release them.  And Karl 

           20   has graciously accepted, yep, we do.

           21                  The elk question is a huge one.  

           22   Certainly if you look across the US, transport of 

           23   farmed elk has been the primary way that this 

           24   disease has gotten from one state to another.

           25                  At the moment, we have only estimates 

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            1   of where elk even are in Texas.  Depending on who 

            2   you ask, some people say Texas has more elk than 

            3   Wyoming does.  So my agency is looking at a number 

            4   of ways that we can do this.  Certainly the North 

            5   American elk breeders comprise the greatest number 

            6   of herds that are in our present program.  But we 

            7   are trying to look at some ways that we can advance 

            8   that surveillance, you know, on elk within Texas.  

            9   But it is a big question. 

           10                  COMMISSIONER WATSON:  So -- and what 

           11   is the attitude of the EWA? 

           12                  DR. WALDRUP:  I'll have to refer that 

           13   one to Karl. 

           14                  MR. KINSEL:  As a board member of 

           15   EWA, I will try to address that, but I'm sure there 

           16   are others here in the audience that can address it 

           17   as well or better.

           18                  I think the attitude of EWA most 

           19   strongly expressed at the last TAHC meeting was that 

           20   the closure of the borders was detrimental, not 

           21   beneficial to surveillance particularly and probably 

           22   encouraged the disease, not discouraged it. 

           23                  Understanding, being involved in the 

           24   business for over nine years myself, I do understand 

           25   that sentiment.  There are those that do take 

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            1   advantage of that.  For us to try to police ourself, 

            2   you can count on that.  It's being done, from the 

            3   extent of the way the good old boys take care of 

            4   each other to turning them in if they can't.  So we 

            5   certainly want to ask the law enforcement to 

            6   prosecute and carry further.  And there have been 

            7   rumors that some people have been turned in and no 

            8   action, per se, has been taken.  We would love to 

            9   know of that action.  We'd love the public to know 

           10   of that action because only if they know those rules 

           11   are enforceable and severe enough can we stop some 

           12   of this illegal importation.

           13                  While I've got the mike for a minute, 

           14   let me take a few other liberties and address 

           15   something else that was charged at TAHC, which I 

           16   think is right on target.  And I'd like to ask it of 

           17   TPWD and challenge TPWD that I personally, and I think 

           18   80 percent of my membership, at least, do not feel 

           19   that this disease, even if it is discovered, is 

           20   extremely devastational to us in comparison to the 

           21   hysteria that is devastational to us.  It is typical 

           22   of an agency, particularly TAHC, to put out 

           23   statistical, oh, my God, things, informational 

           24   pieces.  I think if we could get ahead of the 

           25   hysteria at this point and put out informational 

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            1   pieces that address that, maybe this could be 

            2   naturally occurring, maybe it can't.  A lot of 

            3   things other than we have an epidemic coming towards 

            4   us, and that is what the general public sees.

            5                  So I know that TDA will do its part 

            6   in press releases, public education, seminars, 

            7   everything we can to address that.  We have it under 

            8   control if it hits us.  And it's probably not going 

            9   to hit us.  And it may not be devastating if it does 

           10   hit us.  Those are the messages I'd ask TAHC and 

           11   TPW, all associations and all individuals to carry.  

           12   Thank you. 

           13                  COMMISSIONER FITZSIMONS:  Jerry, I 

           14   believe you --

           15                  DR. COOKE:  There was one other item 

           16   that I wanted to point out.  At the last Texas 

           17   Animal Health Commission meeting, they adopted their 

           18   permanent importation suspension that's similar to 

           19   our own.  In other words, it's going to require 

           20   their commission's action to remove it.  It's 

           21   open-ended.  But they also published rules for 

           22   adoption at a later meeting, which would essentially 

           23   say to bring an elk, a whitetail, mule deer, or a 

           24   black-tailed deer into Texas, it would have to come 

           25   from a facility that had had a total herd monitoring 

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            1   program for five years.  Basically if they have been 

            2   monitoring for five years, they haven't brought 

            3   anything in, you know, outside of that kind of a 

            4   testing protocol, they ain't got it, is what it 

            5   boils down to.

            6                  When that adoption is in place, that 

            7   will address the elk issue, as well as the 

            8   white-tailed and mule deer issue, and I think we'll 

            9   all be in a position to start saying, okay, we've 

           10   got some entry requirements that's monitorable, it's 

           11   repeatable, it's evaluatable, and maybe the 

           12   suspension is no longer necessary.  But that will be 

           13   your decision and the decision of the Animal Health 

           14   Commission.

           15                  COMMISSIONER WATSON:  So, Jerry, 

           16   you're comfortable that CWD can't show up in axis 

           17   deer or fallow deer.

           18                  DR. COOKE:  It is not -- they can't 

           19   make it go.  To my knowledge, the tests involved 

           20   taking filtered fluids from diseased animals and 

           21   injecting it into the brains of animals.  If you 

           22   can't produce it that way, it ain't going to happen.  

           23   Now, sika, red deer, that's another matter.  They're 

           24   so similar to elk, it would shock me if it didn't go 

           25   into those animals.  But as far as the other species 

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            1   are concerned, I'm quite comfortable -- certainly 

            2   fallow deer are not even in the picture.

            3                  DR. WALDRUP:  Mr. Watson, there is -- 

            4   USDA is sponsoring one ongoing long-term experiment 

            5   with elk in Colorado.  It's a five-year study and 

            6   we're just through the first year of it.  So, you 

            7   know, the question of these other exotic deer is, 

            8   again, a good question.  There is a large pile of 

            9   evidence that says CWD doesn't go into pronghorns, 

           10   doesn't go into bison, doesn't go into cattle, 

           11   doesn't go into sheep, doesn't go into goats.  It 

           12   seems to be a deer problem.  Now, within that 

           13   spectrum of deer species, you know, as Jerry has 

           14   pointed out, we do have some questions on some.  And 

           15   it may be a while before some of these get answered. 

           16                  COMMISSIONER MONTGOMERY:  It seems to 

           17   me that a number of the tough decisions that could 

           18   have to be made, you know, determine -- or hinge on 

           19   is it naturally occurring, how does it transmit, 

           20   what is it transmitted to.  These kind of decisions 

           21   are all going to be based on the science.  How are 

           22   we monitoring (inaudible) the best work that's being 

           23   done right now so that we're ready and knowledgeable 

           24   and current? 

           25                  DR. COOKE:  As usual, this is one of 

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            1   these joint efforts.  And Ken, et al., are doing a 

            2   wonderful job of keeping track of what everybody is 

            3   doing in terms of current science.

            4                  One thing I did do is go back and 

            5   look at our old records of this department.  We at 

            6   one time had a wildlife disease project.  It was 

            7   sponsored by a cooperative contract between the 

            8   Department of Veterinary Pathology at Texas A&M and 

            9   our agency.  And it existed for about eight years.  

           10   During that eight years, 601 white-tailed deer 

           11   collected.  These were sick animals, not random 

           12   samples.  These were sick beasties that we were 

           13   concerned about.  Dr. Robinson, who was the 

           14   veterinarian on the project at the time -- the 

           15   project was created to address two issues, one is 

           16   poor reproduction in prong horn and the other one 

           17   was something called circling disease in white-tail.  

           18   And Nick Robinson was seriously concerned that maybe 

           19   this was a jump of scrapy in the deer.  And so he 

           20   intentionally sectioned every brain of every deer 

           21   that was collected by our project.  He didn't tell 

           22   us about it, but it was there in his records.  And I 

           23   talked to him personally the other day to verify it, 

           24   that basically out of that 601 deer that was 

           25   collected across Texas, every one of them sick, 

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            1   every one of them suspicious animals.  Not a one of 

            2   them had had encephalopathy, not one.  So, you know, 

            3   the notion that it's been around forever is not 

            4   borne out by those facts.  Now, whether or not we 

            5   missed it is quiensabe.  But circling disease was an 

            6   issue of serious concern in Texas in the '60s and 

            7   '70s, and that was specifically focused on. 

            8                  COMMISSIONER MONTGOMERY:  How are we 

            9   systematically working, though, the work that's 

           10   being done around the country so that we've got the 

           11   best information to make decisions as we go along? 

           12                  DR. WALDRUP:  That primarily funnels  

           13   through me.

           14                  COMMISSIONER MONTGOMERY:  And how are 

           15   you feeding that to our department? 

           16                  DR. WALDRUP:  At least weekly 

           17   contacts with Jerry.

           18                  COMMISSIONER FITZSIMONS:  Thank you.  

           19   Donato?

           20                  COMMISSIONER RAMOS:  Mr. Kinsel, you 

           21   heard Mr. Cooke talk about a five-year monitoring 

           22   program, perhaps as a method by which deer 

           23   conventionally come back to Texas.  Have you 

           24   discussed that with your organization?  Do you have 

           25   any thoughts as to how you-all would accept that if 

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            1   that was established? 

            2                  MR. KINSEL:  We have not had any 

            3   numerous negative comments with regards to that, no.  

            4   If, in fact, there is reason to believe, and 

            5   certainly if there's science to back up at some 

            6   point in time that this is a transmittable disease 

            7   and is coming into our state because of that, we 

            8   have no problem with the border closures.  I do 

            9   understand, though, they do have problems with the 

           10   border closures when it's -- when those things are 

           11   not present yet.  So that's not a direct answer to 

           12   your question other than that, no, we do not have a 

           13   problem with whatever science makes us understand.  

           14   And we will.

           15                  COMMISSIONER RAMOS:  Has your 

           16   organization done any type of research or consulted 

           17   with anyone that would dispute what the Texas Animal 

           18   Health Commission and our staff is telling us with 

           19   regards to the disease?

           20                  MR. KINSEL:  We have not, but we are 

           21   starting to look at that.  I know EWA has taken the 

           22   lead on that and taken a look at it very seriously.  

           23   We'll stay in contact with them to see if we agree 

           24   or disagree.

           25                  But let me add one thing to that, if 

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            1   I might.  And I think it answers your same question 

            2   in that when we go to -- we already have 

            3   identification, we already have surveillance because 

            4   we already are surveilling.  When we go into a 

            5   voluntary mortality testing program, we're going to 

            6   do the best we can.  But first we've got to have a 

            7   clarification letter; second, we've got to have 

            8   protocol.  These things take time, maybe even months 

            9   before protocol is given to us because I don't know 

           10   if either one of these gentlemen can tell me what we 

           11   would do if we found a dead deer in the morning and 

           12   how we would box it and where does it go and how 

           13   long does it take. 

           14                  And I know Dr. Scott Blueguy, a 

           15   veterinarian and private practitioner, I believe, 

           16   that's here today, did send in two animals within 24 

           17   hours afterwards.  One came back with whatever it 

           18   was, the other one came back inconclusive.  So if a 

           19   veterinarian can't do it that fast, how is us 

           20   individuals going to do that protocol.  So we will 

           21   need that before you can expect some more direct 

           22   answers from us on that. 

           23                  COMMISSIONER RAMOS:  But do you 

           24   agree, though, that in the absence of some evidence, 

           25   some expert evidence from your organization or some 

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            1   expert, we have no choice but to accept what the 

            2   Texas Animal Health Commission is telling us and all 

            3   the other experts.  I mean, we can speculate and we 

            4   can theorize, but it sounds to me like you don't 

            5   have any objective evidence from anywhere that would 

            6   dispute what staff is telling us at the Texas Animal 

            7   Health Commission. 

            8                  MR. KINSEL:   I do not at this time, 

            9   sir, no. 

           10                  COMMISSIONER RAMOS:  Thank you.

           11                  COMMISSIONER FITZSIMONS:  Thank you. 

           12                  COMMISSIONER ANGELO :  I have a 

           13   question about the testing process and what the cost 

           14   of the test is, how many people are qualified to do 

           15   the tests, how valid the results are statistically 

           16   and those kind of related questions with respect to 

           17   the testing. 

           18                  MR. KINSEL:  Good question. 

           19                  DR. WALDRUP:  Commissioner, I'd be 

           20   glad to address that for you.  We're actually in -- 

           21   on the very cusp of a change here in Texas.  Texas 

           22   Veterinary Medical Diagnostic Lab received a grant 

           23   last year from USDA to install machinery and train 

           24   personnel on a technique called 

           25   "Immunohistochemistry."  The sensitivity and 

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            1   specificity of this test is that it is extremely 

            2   sensitive.  It's also very specific, so it's the 

            3   ideal thing right now for diagnosis of CWD.  It, 

            4   again, works on, at this point, on brain stem, you 

            5   know, as the other test.

            6                  The original test was called 

            7   histopathology.  And that's a standard technique 

            8   that -- you take a brain sample that's fixed in 

            9   formaldehyde, you cut it in various thin sections, 

           10   it's stained and it's observed under the microscope 

           11   by a trained pathologist.  And all they were doing 

           12   was looking for this spongy change, that is, the 

           13   holes in the brain.

           14                  This was not a particularly good test 

           15   in that other things can cause a spongiform change, 

           16   toxic plants, just autolysis if the animal has been 

           17   dead a while.  Immunohistochemistry is far superior 

           18   to this.  And, as I say, literally any day now, the 

           19   TBMDL will be on-line to do that.  And we will be 

           20   changing our surveillance program to 

           21   immunohistochemistry away from histopathology.  As 

           22   far as who does the test, again, this is a lab test.  

           23   The samples are submitted by sometimes a producer, 

           24   usually by an accredited veterinarian.  And they go 

           25   to the lab and then the lab does their thing.

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            1                  So I actually feel very confident, if 

            2   we got a test positive, that it truly is a positive, 

            3   it's not a false positive.  The other advantage to 

            4   immunohistochemistry is that you can -- it actually 

            5   still performs very well on tissue that's slightly 

            6   autolized.  It can't be just totally rotten, but you 

            7   can use tissue that's really too far gone for 

            8   standard histopathology.  So the tests that we're 

            9   going to be using is, I think, the best thing that 

           10   there is available in the world at this point in 

           11   time.

           12                  COMMISSIONER ANGELO :  What's the 

           13   cost going to be of the test? 

           14                  DR. WALDRUP:  Again, that cost right 

           15   now -- TVMDL hasn't given us a cost yet.  The 

           16   standard histopathology that we've been using, the 

           17   laboratory fee was $25.  They're fairly certain the 

           18   immunohistochemistry will be less.

           19                  COMMISSIONER ANGELO:  How many deer 

           20   in these herds, how many deer on an annual basis 

           21   percentage-wise would you expect to lose in some 

           22   kind of standard mortality of...

           23                  DR. COOKE:  Program-wide, there's 

           24   approximately 19,000 deer in breeder pens.  And 

           25   across the program annually, routinely it's about 12 

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            1   percent mortality.  So that would be a substantial 

            2   fraction.  Even, you know, half of that many, you 

            3   know, where we could use as a test.

            4                  COMMISSIONER ANGELO:  So when you 

            5   say, though -- when you say that the animal could 

            6   have been dead for some time, how long a time are we 

            7   talking about?  Could it be days or hours or --

            8                  DR. WALDRUP:  Commissioner, it 

            9   depends on the season.  You know, in December, you 

           10   might be able to find him three days later and 

           11   things are still okay.  In August, it may be 12 

           12   hours.  On situations like that, we just have to do 

           13   the best we can.

           14                  COMMISSIONER FITZSIMONS:  Thank you. 

           15                  COMMISSIONER RISING:  I have one more 

           16   question.  Is the new test -- is it more accurate at 

           17   detecting deer that have been dead for a couple of 

           18   days versus a fresh specimen?  Does it have a better 

           19   sensitivity post mortem as far as delayed...

           20                  DR. WALDRUP:  Commissioner Rising, 

           21   with the standard histopathology, yes, sir, that you 

           22   almost needed to take the samples almost two minutes 

           23   after it died.  This test will certainly give us a 

           24   better tool for those that may have been dead a 

           25   while.

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            1                  COMMISSIONER FITZSIMONS:  Thank you.  

            2   Well, bringing it back to -- this is for Karl and 

            3   Jerry, I guess.  Bringing us back to where we left 

            4   off at the last meeting, I didn't exactly follow 

            5   your arithmetic.  How many confirmed participants do 

            6   you have today, Karl? 

            7                  MR. KINSEL:   19 that have been 

            8   submitted in to Rick Smathers.  I have another 11 

            9   and another 13, 11 that have signed up on what I put 

           10   together, which is a TDA member request for 

           11   application for TAHC Form 0008.  Basically they said 

           12   it's not clear enough to understand and sign, but we 

           13   certainly want to comply and we want to do.  When 

           14   you get a clarification letter from Drs. Waldrup and 

           15   Cooke, then we'll understand, we'll believe and 

           16   accept and we'll sign up. 

           17                  COMMISSIONER FITZSIMONS:  Okay.  How 

           18   many confirmed today? 

           19                  MR. KINSEL:   19 that are turned in. 

           20                  COMMISSIONER FITZSIMONS:  Okay.  All 

           21   right.  And somehow we got to 70 at one point, and 

           22   I'm not sure how we got there. 

           23                  MR. KINSEL:   11 that are signed up 

           24   on this.

           25                  COMMISSIONER FITZSIMONS:  All right.

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            1                  MR. KINSEL:  We've got another --

            2                  COMMISSIONER MONTGOMERY:  What 

            3   percent is that right there?  Excuse me.  The total, 

            4   the 30, if you assume the 11 are all going to sign 

            5   up, what's the percent or total is that? 

            6                  COMMISSIONER WATSON:  That's 7 

            7   percent.  Out of the 459, that's about 7 percent.

            8                  DR. WALDRUP:  We already have either 

            9   8 or the 9 already in our program in addition to the 

           10   numbers that Karl has.

           11                  COMMISSIONER FITZSIMONS:  All right.  

           12   Then you mentioned another 13.  And what were those 

           13   13? 

           14                  MR. KINSEL:  Those 13 are people who 

           15   have sent in emails to me saying, yes, we want in 

           16   the program, but here are my questions.  I already 

           17   know the answers to those questions.  But they're 

           18   going to need to see it in writing and it is coming 

           19   in the form of a clarification letter.  I guess what 

           20   we're going to try to do, and I think both of these 

           21   gentlemen certainly understand because at the TDHC 

           22   meeting we sat down with it, that clarification 

           23   letter solves a lot of the questions and immediately 

           24   once that's available and goes out -- I asked for it 

           25   of Ken between dark and daylight one day last week 

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            1   before I went to a meeting of 70 of my own breeders 

            2   to have that so I could say that here it is.  The 

            3   only thing I could do is say, here is my 

            4   understanding, here is a form, force nobody to do 

            5   anything.  And they gave me a whole list at that 

            6   meeting.  And there's about 70 on there that said, 

            7   yes, if that's a clarification letter, when you get 

            8   it, then we're on. 

            9                  COMMISSIONER FITZSIMONS:  Okay.  So 

           10   at 30, we're roughly a quarter of the way there.  

           11   And where were you in April when we left this issue 

           12   in --

           13                  MR. KINSEL:  Zero.

           14                  COMMISSIONER FITZSIMONS:  You were at 

           15   zero.  So you've gone from zero to 25 percent in 

           16   that month? 

           17                  MR. KINSEL:  Yes, sir. 

           18                  COMMISSIONER FITZSIMONS:  All right.  

           19   Of your goal of 127? 

           20                  MR. KINSEL:  Yes, sir. 

           21                  COMMISSIONER ANGELO:  Do you feel you 

           22   can get the signature without some knowledge about 

           23   what the indemnification or what the process is 

           24   going to be?

           25                  MR. KINSEL:  We know something about 

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            1   indemnification now.  It's not real palatable at the 

            2   most, but it is there.  And it is if the federal 

            3   register and we've got copies of that and it is 

            4   going to be summarized in layman's terms by 

            5   Dr. Waldrup in this clarification letter.  And, yes, 

            6   I feel we can get to that 127 with that 

            7   availability.

            8                  COMMISSIONER FITZSIMONS:  And how 

            9   soon? 

           10                  MR. KINSEL:   Within 60 days after he 

           11   gets me that letter.  So I think that's where we 

           12   are.  Because it will take individual contact.

           13                  Let me address one other challenge 

           14   with you, though, that's hard.  And Jerry and I have 

           15   both talked about it is, TDA has 881 members, which 

           16   there's only 282, if I remember the numbers correct, 

           17   that are scientific breeders that have given us 

           18   permit numbers.  There may be some more of our 

           19   members that didn't put their number on their form 

           20   and there are and we've got to go back individually 

           21   and find these scientific breeders. 

           22                  What we would love to have is a list 

           23   of all 467 scientific breeders so we can do our job 

           24   better and go after those to get them signed up.  

           25   But understand, they're not TDA members.  They're 

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            1   scientific breeder members.  And there is a privacy 

            2   act with regards to release of that information.  So 

            3   asking me for 127 out of 280 is pretty tough.  But I 

            4   can still probably do that.  If I can get the other 

            5   ones or if I can work through TPWD to get that 

            6   information out, I believe that would be extremely 

            7   beneficial.

            8                  COMMISSIONER FITZSIMONS:  We can 

            9   notify of this voluntary program, can't we? 

           10                  DR. COOKE:  We can.  The entity, TWA, 

           11   is also making efforts through their membership.  

           12   One of the things that we offered in the first 

           13   conversation about this, if they wanted to 

           14   contact -- if the Texas Deer Association, for 

           15   instance, wanted to contact all the scientific 

           16   breeders themselves, all that we would have to have 

           17   is the stuff sealed in an envelope and a stamp on 

           18   it, and we'll address them all.  And they will go 

           19   out that day.  You know, that's not a problem.  

           20   That's not a violation of the privacy act. 

           21                  COMMISSIONER FITZSIMONS:  It's 

           22   turning over the list.  Okay. 

           23                  DR. COOKE:  It's turning over the 

           24   list. 

           25                  MR. KINSEL:  And we were prepared to 

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            1   do that and we're still prepared to do that.  But we 

            2   know that this agreement, with the not user friendly 

            3   things on here, would not be beneficial without the 

            4   clarification letter on top of it. 

            5                  COMMISSIONER ANGELO:  I guess I 

            6   hadn't really -- I hadn't realized that you weren't 

            7   dealing with a hundred percent of them.  And so 

            8   that's a real loophole.  We need -- we really need 

            9   to make a big effort to get the rest of those people 

           10   contacted and involved in the program. 

           11                  DR. COOKE:  As I said, the Texas 

           12   Wildlife Association is in the process of contacting 

           13   all of their members.  And there's not going to be 

           14   very many left.

           15                  COMMISSIONER ANGELO:  After that 

           16   move? 

           17                  DR. COOKE:  Yes, sir. 

           18                  COMMISSIONER FITZSIMONS:  Well, in 

           19   light of the fact this has been done 25 percent in 

           20   six weeks with just his membership is a pretty good 

           21   movement.

           22                  On a procedural note, just in order 

           23   to move my committee along here, I need to ask 

           24   Jerry, if we were to -- in light of the progress 

           25   that Karl has shown here and his representations to 

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            1   us to continue to even improve that progress, if we 

            2   were to revisit this issue in August, how would that 

            3   be handled, as far as posting in the Register? 

            4                  DR. COOKE:  Action could be taken in 

            5   August on the current posting, on the current 

            6   publication.  However, there's only one day to 

            7   spare.  In other words, we'd have to leave this 

            8   commission meeting and send it to the Secretary of 

            9   State in one bottle, and we've messed up.

           10                  If the Commission is going to 

           11   determine to postpone further consideration, my 

           12   recommendation would be that we withdraw our current 

           13   publication and republish it.  And that would allow 

           14   you the flexibility to review it, not only in August 

           15   but also in November, if you chose to do that. 

           16                  COMMISSIONER FITZSIMONS:  But that 

           17   would not prevent us from taking any emergency 

           18   action that might be necessary in the interim? 

           19                  DR. COOKE:  Absolutely not. 

           20                  COMMISSIONER FITZSIMONS:  Well, I 

           21   would recommend that if we can defer that to 

           22   tomorrow's and have a motion, I would recommend we 

           23   pursue that.

           24                  If I could, Karl, I want to thank 

           25   you.  You're not done yet.  The pressure is on and 

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            1   the pressure is going to stay on. 

            2                  MR. KINSEL:   Yes, sir. 

            3                  COMMISSIONER FITZSIMONS:  You've 

            4   risen to a task that I recognize it wasn't easy.  

            5   And it's not going to get any easier, I don't think, 

            6   as we learn more about these diseases.

            7                  Having said all that, I remind you 

            8   that all those scientific breeder permittees chose 

            9   to be scientific breeder permittees.  And animal 

           10   health is going to continue to be part of their 

           11   responsibility.  And I appreciate you addressing 

           12   that responsibility. 

           13                  MR. KINSEL:  Let me address one other 

           14   thing quickly, though, because I'll go back and some 

           15   things we say we always have to be reminded.  But, 

           16   Chairman Idsal, at the TSCRA, you said you hate to 

           17   see programs, voluntary or otherwise, that are 

           18   instituted in any form or fashion that do not have 

           19   time elements on them.  We're not so ignorant that 

           20   we do not understand that when we scientifically 

           21   don't know that we can't put a time element on it.  

           22   But I can promise you that the breeders want to, at 

           23   some time, know that there is an end to this 

           24   economic situation that we're under if we do not 

           25   incur CWD.  For example, in our TV programs that we 

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            1   went through with the fallow deer, we tested some 

            2   30,000.  And after a while, everybody said, you 

            3   know, there's no end to this deal.  Why do I 

            4   continue to it?  It's cost us thousands and 

            5   thousands of dollars per operation.  So I would like 

            6   that the TP&W to consider for our next meeting that 

            7   if we are in this program, give us a 24-month window 

            8   or something that we can address and so long as CWD 

            9   is not there and we do not find it, that we are not 

           10   mandated to any requirements after that.  We need 

           11   some window of out, not just in. 

           12                  COMMISSIONER FITZSIMONS:  Thank you. 

           13                  CHAIRMAN IDSAL:  Thank you.

           14                  COMMISSIONER FITZSIMONS:  If there 

           15   are no further questions or discussion, without 

           16   objection, I'll place this item on our Thursday 

           17   commission meeting agenda for the public comment and 

           18   action.  All in favor? 

           19                  Do you have a -- you gave me that 

           20   look.

           21                  COMMISSIONER RAMOS:  No. 

           22                  COMMISSIONER FITZSIMONS:  All right.  

           23   All opposed?  Motion carries. 

           24                (Motion passed unanimously.)

           25                  COMMISSIONER FITZSIMONS:  And I 

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            1   believe, unless there is any other business to come 

            2   before the regulations committee, we stand adjourned 

            3   at 10:10. 

            4                  CHAIRMAN IDSAL:  Before continuing on 

            5   with the conservation committee, I would like to 

            6   take a five-minute break. 

            7                  (RECESS.)

            8                         *-*-*-*-*

            9                   (MEETING ADJOURNED.)

           10                        *-*-*-*-*             
















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            1                  REPORTER'S CERTIFICATE


            3   STATE OF TEXAS   )

            4   COUNTY OF TRAVIS )

            5            I, MELODY RENEE DeYOUNG, a Certified Court 

            6   Reporter in and for the State of Texas, do hereby 

            7   certify that the above and foregoing 55 pages 

            8   constitute a full, true and correct transcript of 

            9   the minutes of the Texas Parks & Wildlife Commission 

           10   on May 29, 2002 in the commission hearing room of 

           11   the Texas Parks & Wildlife Headquarters Complex, 

           12   Austin, Travis County, Texas.

           13            I FURTHER CERTIFY that a stenographic 

           14   record was made by me at the time of the public 

           15   meeting and said stenographic notes were thereafter 

           16   reduced to computerized transcription under my 

           17   supervision and control.

           18            WITNESS MY HAND this the 5th day of August, 

           19   2002. 

                         MELODY RENEE DeYOUNG, RPR, CSR NO. 3226
           22            Expiration Date:  12-31-02
                         3101 Bee Caves Road
           23            Centre II, Suite 220
                         Austin, Texas  78746
           24            (512) 328-5557

                            ESQUIRE DEPOSITION SERVICES
                           3101 Bee Caves Road, Suite 220
                                Austin, Texas 78746
                         (512)328-5557    Fax (512)328-8139