12-076 Code Vt. R. 12-010-076-X - IMPORTATION AND POSSESSION OF ANIMALS FOR TAKING BY HUNTING

Section 1.0 Authority and Application

1.1 This rule is promulgated pursuant to 10 V.S.A. §§ 4081, 4082 and 4714.

1.2 In promulgating this rule, the Vermont Fish and Wildlife Board is following the policy established by the General Assembly that "the protection, propagation control, management and conservation of fish, wildlife and furbearing animals in this state is in the interest of the public welfare and that the safeguarding of this valuable resource for the people of the state requires a constant and continual vigilance," as stated in 10 V.S.A. § 4081.

1.3 In accordance with 10 V.S.A. § 4082, this rule is designed to maintain the best health, population and utilization levels of wild animals.

1.4 Wild animals in Vermont belong to the people in their collective and sovereign capacity, not in their private and individual capacities, as long recognized by the Vermont Supreme Court.[n1] Ownership of wild animals may only be acquired subject to the reasonable regulation as provided for by the General Assembly.

[n1 See, inter alia, State v. Theriault, 70 Vt. 617 (1898), Payne v. Sheets, 75 Vt. 335 (1903); State v. Niles, 78 Vt. 266 (1906); Zanotti v. Bolles 80 Vt. 345 (1907).]

1.5 This rule applies to any live animal that is possessed or confined for the purposes of taking by hunting.

1.6 This rule applies to enclosures whose purpose is to confine animals to be taken by the means of hunting. It shall not apply to activities permitted under the provisions of 10 V.S.A. § 5212, or regulations 734 (Beagle Training) and 690 (Regulated Shooting Grounds).

Section 2.0 Purpose and Policy

The purpose of this rule is to:

2.1 In accordance with 10 V. S.A. § 4714, establish the necessary criteria to implement and enforce the permit and permit process for the importation and possession of animals for the purposes of hunting;

2.2 Maintain the best health of the wild animals of the State, both in the wild populations and those animals within facilities permitted under this rule;

2.3 Prevent the introduction or spread of a disease, or parasite by imported animals that are harmful to humans and wild animals, specifically, but not exclusively, the spread of "Chronic Wasting Disease" ("CWD"), bovine tuberculosis, and rabies;

2.4 Ensure the physical health and safety of humans;

2.5 Ensure the rights of hunting and fowling enshrined in Section 67 of the Vermont Constitution;

2.6 Prohibit entrapment of white-tailed deer and moose or any wild animal not authorized in this regulation, even if temporary, by means of a fenced enclosure or enclosed hunting facility;" and

2.7 Maintain the health of the white-tailed deer and moose populations by ensuring that diseases associated with enclosed animals are not introduced into the wild and that there are sufficient open lands for the wildlife of the State to travel, feed, and meet all their life requirements and support population levels to accommodate the public's interests in these resources.

Section 3.0 Definitions

3.1 "Animals" means all members of the animal kingdom, wild or domestic.

3.2 "Application" means a document produced and published by the Department, completed by a person seeking a permit from the Commissioner to import or possess animals for taking by hunting.

3.3 "Board" means the Vermont Fish and Wildlife Board.

3.4 "Cervid," "Cervidae," and "deer" means any member of the Cervidae family.

3.5 "Chronic wasting disease" ("CWD") means a transmissible spongiform encephalopathy (TSE) of cervids.

3.6 "Commissioner" means the Vermont Fish and Wildlife Department Commissioner.

3.7 "CWD susceptible cervid" means any species of the family Cervidae, or any other family or genera, when published scientific evidence shows susceptibility to Chronic Wasting Disease ("CWD"), including black-tailed and mule deer, white-tailed deer, elk, red deer, and moose. Fallow deer ( Dama dama) are excluded until susceptibility evidence is discovered.

3.8 "Department" means the Vermont Department of Fish and Wildlife.

3.9 "Designated Employee" means an employee or agent of the Permittee who has been designated by the Permittee to take a captive animal or wild animal that has become entrapped. The names of all designated employees shall be provided to the Department, in writing, prior to being given authorization to take any animal.

3.10 "Enclose" means to create through the use of fences, man-made structures, or natural barriers, an area that can be used to restrict the free movement of animals.

3.11 "Enclosure" means a structure designed to restrict the free movement of animals and the area within that structure.

3.12 "Escape-proof" means so constructed that the captive animals will remain confined under all circumstances, except when natural catastrophe or other incidents occur over which the owner or the owner's agent has no control. "Escape-proof" also means so constructed as to prevent ingress from white-tailed deer and moose.

3.13 "Herd" means one or more cervids that are under common ownership or supervision permitted under this rule and are grouped on one or more parts of any single premises (lot, farm or ranch), and all cervids under common ownership or supervision on two or more premises which are geographically separated but on which cervids have been commingled or had direct or indirect contact with one another.

3.14 "Herd inventory" means an official list of all of the animals enclosed within the facility including verification of the official or approved identifications.

3.15 "Hunting" means the taking of an animal by use of a firearm, muzzleloader, bow or crossbow or other implement authorized by the General Assembly, or the Vermont Fish and Wildlife Board to pursue or take any live animal.

3.16 "Hunting Facility" means an enclosure created by the use of fences, man-made structures, or natural barriers where animals are confined to be taken by hunting. Specifically excluded from this definition are activities covered by regulations 734 (Beagle Training) and 690 (Regulated Shooting Grounds).

3.17 "Import" means any act of transporting animals into Vermont from any state or country.

3.18 "NAIS" means National Animal Identification System. This is a national program administered by the United States Department of Agriculture outlining standard operating procedures in animal identification.

3.19 "Owner" means an individual, partnership, company, corporation or other legal entity that has legal title to an animal or herd of animals.

3.20 "Permit" means a written authorization from the Commissioner specifically granting a request to import and/or possess animals for hunting within an authorized facility.

3.21 "Person" includes individuals, principals, agents, employees, firms, partnerships, corporations and associations.

3.22 "Possession" means actual or constructive possession.

3.23 "Take and taking" means pursuing, shooting, hunting, killing, capturing, trapping, snaring and all lesser acts, such as disturbing, harrying or worrying or wounding or placing, setting, drawing or using any net or other device commonly used to take animals, whether they result in the taking or not; and shall include every attempt to take and every act of assistance to every other person in taking or attempting to take fish or wild animals, provided that when taking is allowed by law, such a taking must be by lawful means and in a lawful manner.

Section 4.0 Generally

4.1 Prohibited: It is unlawful to take by hunting any animal in an enclosed area by a person other than the owner of the facility, spouse, the landowner's minor child, licensed veterinarian, or designated employee as defined by this rule, unless the facility is properly licensed as a captive hunt facility under this rule or has been granted authorization by the Commissioner.

4.2 Importation: It shall be prohibited to import, possess or confine any live animal, to be taken by hunting except the species listed in Section 4.5 of this rule. It shall be unlawful to import, possess or confine to be taken by hunting white-tailed deer and moose.

4.3 Ingress: When any species of animal that is imported or possessed for the purposes of hunting but not approved under 4.5 of this Rule, or any white-tailed deer or moose becomes entrapped within an enclosure of a permitted facility, the Permittee, or an agent of the Permittee shall notify the Department of Fish and Wildlife within the 24 hours of actual or constructive notice of the entrapment. The Department of Fish and Wildlife may take whatever steps under its authority that are deemed necessary to remove and dispose of any entrapped white-tailed deer or moose.

a) Authorization to take by Permittee: The Permittee, or its designated employee, is authorized to take an entrapped animal. Any such taking must be reported to the Department within 12 hours of the taking. Any authorized person shall immediately properly dress the carcass and care for the meat. The entire carcass of any animal taken or removed under this subsection is the property of the Commissioner and shall be tested for diseases as specified by the Fish and Wildlife Department.

4.4 Escape: Any animal approved for importation and possession under 4.5 of this Rule that escapes any enclosure of a permitted facility shall be reported to the Fish and Wildlife Department within 24 hours of the Permittee's actual or constructive notice of the escape.

a) Escaped animals: Upon actual or constructive notice of an escape of an approved animal from a permitted facility, the Permittee shall attempt to recapture the animal. Any such escaped animal which remains outside the enclosure longer than 72 hours, shall be subject to being destroyed by the Department.

b) Extension: For good cause shown, the Commissioner may grant additional time for recapture when a request for extension of time is submitted.

4.5 Allowed Species: No species of animal may be hunted in any hunting facility except those listed below.

a. The list of allowed animals is as follows:

Buffalo ( Bison bison)

Elk or wapiti ( Cervus elaphus canadensis)

Red deer ( Cervus elaphus)

Fallow deer ( Dama dama)

European wild boar ( Sus scrofa ferus)

Spanish goat ( Capra aegagrus hircus)

Mouflan sheep ( Ovis musimon)

Corsican, Black Hawaiian, Texas Dall, and Barbarossa sheep ( Ovis hybrids)

b. If a Permittee or applicant wishes to import and enclose a species not list in 4.a. above for the purpose of being taken by hunting, the Board may be petitioned to include that species. Species approved must not have an adverse effect on the State's wildlife, and the proposed importation and/or possession will maintain the best health, utilization and population levels of wildlife.

4.6 Season: There shall be no closed season for any animal possessed for the purposes of hunting if in compliance with this rule.

4.7 License: It is unlawful for any person to take an animal in a hunting facility unless in the possession of a valid and current Vermont hunting license.

4.8 Rare and Irreplaceable Natural Areas: No part of the proposed enclosure will encompass any land designated as a Rare and Irreplaceable Natural Area, as defined by the Act 250 process.

4.9 Necessary Wildlife Habitat: No part of the proposed enclosure will encompass any areas designated as Necessary Wildlife Habitat as defined by the Act 250 process, or as designated by the Department.

4.10 Enclosure Size: No hunting facility may have an enclosure less than 100 acres in size for the purpose of taking an animal by hunting. No hunting facility may have enclosures with total summed area greater than 1280 acres.[n2]

[n2 1280 acres is equivalent to two square miles. Limiting the size to 1280 acres reduces the risk of interfering with populations of white-tailed deer, moose, bear and other species that depend on large areas of land during seasonal movement to fulfill their life requirements.]

4.11 Premises inspection: All facilities permitted under this rule shall be subject to inspection by the Commissioner or the Commissioner's designee. Such inspections may include, but are not limited to, records kept under this rule, perimeter fencing, enclosed animals, and any structures within the facility. Requests for inspection shall take place during reasonable business hours.

4.12 Record keeping and CWD Certified Herd Program: Accurate records documenting purchases, sales, interstate shipments, intrastate shipments, escaped animals, entrapped white-tailed deer and moose, deaths (including harvested animals), and births shall be established and maintained for all hunting operations.

a) Availability of Documents: Documentation shall be made available to Department personnel immediately upon request.

b) Content of Documents: Information provided in the records shall be kept on forms provided by the Department. Information shall include: where animals originated, travel (sale) history, individual animal identification, certificate of veterinary inspection, carcass and sample identification numbers, sex, species, and age.

c) Multiple Enclosures: If a facility has multiple enclosures, movement of animals between such enclosures shall be recorded as if they were separately owned enclosures.

d) CWD Certified Herd Program: The owners of any CWD susceptible cervid shall enroll in the Vermont Agency of Agriculture, Food and Market's CWD Certified Herd Program and remain compliant with the Vermont Rules Governing Captive Cervidae as applied to any possession or take of a CWD susceptible cervid.

4.13 Feeding: The feeding of ruminant protein to cervids is strictly prohibited. All facilities permitted under this rule are forbidden from feeding prohibited feed ingredients. The storage of prohibited feed in the same area as allowable feed is also prohibited. Feeding practices will be reviewed during inspections.

4.14 Animal Health: Captive animals shall have sufficient food, water, and cover, as well as a variety of topographical areas and vegetation types that are not to become excessively degraded over time due to over-stocking of animals. Animals shall receive humane and proper treatment in accordance with accepted agricultural or veterinarian practices.

Section 5.0 Requirements of the Facility and Operation

5.1 Fencing Requirements:[n3]

[n3 These requirements are consistent with the Vermont Agency of Agriculture, Food and Market's Rules Governing Captive Cervidae (2006).]

a) General: Captive animals must be contained within an escape-proof enclosure that complies with all specifications under this rule at all times. Repeated escapes of captive animals, or the ingress of white-tailed deer or moose is evidence of non-compliance with this rule.

b) Specifications:

(1) Conventional or hi-tensile perimeter fences of which at least the bottom six (6) feet must be mesh (maximum mesh size shall be 12 1/2" x 7"). The overall height is to be a minimum of eight (8) feet.

(2) Minimum wire gauges - 12 1/2 gauge - conventional fence; 14 1/2 gauge - woven hi-tensile.

(3) All perimeter gates providing access to animal holding facilities shall be kept secured when animals are present. Gate construction shall be constructed and maintained to prevent escape of captive animals, or ingress by white-tailed deer or moose, by crawling under the gate, jumping over the gate, or passing between the gate and adjacent fence.

(4) Posts - four (4) inch minimum diameter, wood or equivalent (e.g., rust resistant steel), spaced no more than fifty (50) feet apart (60 foot spacing is allowed if there are at least two (2) steel posts between the wood posts). There shall be a post or stay (wood or steel) every 20 feet. Posts must be at least eight (8) feet above ground level. Corners shall be braced with wood or equivalent material.

5.2 Identification:

a) Any animal added to the enclosure shall have a minimum of two official/approved unique identifiers. At least one of these identification systems shall include visible identification and at least one shall include identification as set forth in NAIS.

b) For all animals not covered by the Agency of Agriculture's identification requirements, the Commissioner shall establish an identification system such as, but not limited to, tags and tattooing. The Commissioner may approve a written identification plan generated by the Permittee. All animals to be enclosed shall be identified prior to being placed in the enclosure.

5.3 Capture Chutes for Testing: Shall be in accordance with the rules of the Secretary of the Agency of Agriculture, Food and Markets.

5.4 Testing of Live Animals: Shall be in accordance with the rules of the Secretary of the Agency of Agriculture, Food and Markets.

5.5 Monitoring: Facilities operating under this rule shall allow the Commissioner, or the Commissioner's designee, to inspect the permitted facility and records at any time.

5.6 Testing of Harvested Animals: Shall be in accordance with the rules of the Secretary of Agriculture, Food and Markets.

Section 6.0 Application Process

6.1 Eligibility: Only those hunting facilities in existence prior to October 28, 2008, will be eligible to apply for a permit subject to this rule. No new hunting facilities for the taking of animals by hunting behind fences will be established or permitted.

6.2 It is unlawful to import or possess any animal for the purposes of being taken by hunting without a permit. Prior to the importation or possession of any animal by a person, party, or corporation for the purposes of being taken by hunting under this rule, a facility shall apply to the Commissioner in writing with a permit application designed and provided by the Commissioner. The application shall include:

a) Name, address and phone number of the Applicant and/or Owner and/ Operator if different. Name address and phone number of any "designated employee" as defined in this rule.

b) Map of facility, depicting enclosure location and parcel boundaries.

c) Proof of ownership, including title or lease.

d) Area, in acres, of the lands to be enclosed.

e) A description of the lands to be enclosed, including habitat and vegetative conditions including wetlands, cover, and water sources.

f) A letter from the Department indicating that the area to be enclosed does not encompass a Rare of Irreplaceable Natural Area, Necessary Wildlife Habitat, or other rare community type.

g) Detail of the two kinds of identification systems to be used at the facility as prescribed in this rule.

h) Copies of veterinary inspection reports certifying the disease free status of the animals and all necessary testing in compliance with rules of the Secretary of the Agency of Agriculture, Food and Markets.

i) Documentation showing the facility to be in compliance with all local, municipal, state and federal licensing, zoning, taxation, and other applicable laws or regulations.

j) Any additional information as is necessary to determine that the importation or possession of the animals referred to complies with the purposes of this rule.

k) A Permittee shall provide a bond, secured note of credit, or equivalent instrument, equal to the cost of decommissioning the facility. Factors in determining the cost of decommissioning shall include, but not be limited to: acreage, number of animals, and linear feet of fencing.

6.3 Receipt: The Commissioner shall acknowledge, in writing, receipt of the application within thirty (30) days of receipt. The acknowledgement shall state whether the application is complete or deficient.

6.4 Deficiencies: If the application is administratively deficient, the Commissioner shall inform the applicant of the deficiencies and give the applicant thirty (30) days starting the day the notice is placed in the United States mail to correct the deficiencies. Applications that remain deficient after the thirty (30) day period shall be deemed denied by the Commissioner and returned to the applicant.

6.5 Review: When an application is deemed administratively complete, the Commissioner shall review the information supplied to determine if the application complies with all parts of this rule.

6.6 Site Inspection: Prior to final approval, the Commissioner, or the Commissioner's designee, shall conduct a site inspection. The inspection shall ensure that all parts of this rule have been verified, including the absence of white-tailed deer or moose within the hunting facility enclosure. Any animals subject to this rule may not be added to the premises prior to inspection and approval.

6.7 Issuance: If the application has been deemed complete by the Commissioner, the site inspection has revealed no deficiencies, and the Commissioner has found that the applicant is in full compliance with this rule, a permit shall be issued and a facility identification number will be assigned for future correspondence and reporting purposes.

6.8 Denial: If the application is denied, the Commissioner shall, within thirty (30) days, provide a written denial providing the reasons why the application was denied.[n4]

[n4 See Section 8.0 of this rule regarding appeals of a denial.]

6.9 Term: Subject to full compliance with this rule, a Permittee may apply for a renewal every three years.

Section 7.0 Permit Revocation

7.1 Grounds for Revocation: The Commissioner may revoke any permit issued for failure to comply with the provisions of this rule or when there is an imminent threat of a disease from the facility to any wildlife species of the state.

7.2 Notification: If the Commissioner finds that a facility permitted under this rule is in violation of the rules promulgated by the Board or the provisions of Part 4 of Title 10 of the Vermont Statutes Annotated, or there is an imminent threat of disease from the hunting facility to any wildlife species of the state, then the Commissioner shall notify the Permittee in writing of the intent to revoke the permit.

7.3 Opportunity to Cure: A Permittee found out of compliance with Sections 5.1, 5.2, and 5.3 of this rule will have thirty (30) days from the date of notification to cure the non-compliance.

7.4 Proceeding: Notwithstanding the license revocation in accordance with Title 10 V.S.A. § 4502, under Section 7.1 of this rule, the Commissioner shall, prior to permit revocation, provide a proceeding consistent with 3 V.S.A. § 814(c).

7.5 Emergency Revocation: If the Department finds that the public health, safety, or welfare imperatively requires emergency action, or there is an imminent threat to any wildlife species of the state, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings as described above.

Section 8.0 Appeals

Notwithstanding 10 V.S.A. § 4502, any person aggrieved by the Commissioner's finding, order or revocation under this rule may appeal to the superior court in Washington County.

Section 9.0 Facility Decommissioning

9.1 Following permit revocation, or permit abandonment, captive animals within enclosures shall not be released from facilities.

9.2 All imported animals and their offspring shall be subject to the requirements of 5.2 and 5.4 of this rule.[n5] Thereafter, animals may be removed from the enclosure, or continue within the enclosure and subject to the jurisdiction of the Agency of Agriculture, Food and Markets.

[n5 That is, all animals must be identified and tested prior to being introduced into any other population or enclosure.]

9.3 Depopulated facilities shall have at least 1/10 of perimeter fencing removed from all sides to allow passage of wild animals in addition to the removal of all corner fencing of the enclosures. Exceptions to this clause will be made for CWD and/or tuberculosis-positive facilities at the discretion of the Department in accordance with most recent scientific evidence for environmental resilience of CWD and/or tuberculosis pathogens.

Section 10.0 Compliance of Existing Facilities

10.1 All existing facilities must receive a permit under this rule within one year of its adoption or will be deemed out of compliance with this rule and subject to the penalties allowed by law.

10.2 Hunting facilities found operating without a valid permit shall be deemed out of compliance with rule and subject to the penalties allowed by law.

Notes

12-076 Code Vt. R. 12-010-076-X

STATUTORY AUTHORITY: 10 V.S.A. §§ 4081, 4082, 4714
EFFECTIVE DATE: January 4, 2009 Secretary of State Rule Log #08-053