Commission Agenda Item No. 2
Exhibit A

DEER MANGEMENT PERMIT CWD RULES

PROPOSAL PREAMBLE

 1. Introduction.

         The Texas Parks and Wildlife Department proposes new §65.94, concerning Chronic Wasting Disease — Deer Management Permit Provisions. The new rules will be part of Subchapter B, Division 2, Chronic Wasting Disease — Movement of Deer. The department wishes to emphasize that the proposed new rules, if adopted, would be an interim replacement for the current rule,  adopted on an emergency basis on October 5, 2015 (40 TexReg 7305), which is necessary to maintain regulatory continuity for the duration of the 2015-16 deer season and the period immediately thereafter. Based on additional information from the ongoing epidemiological investigation, disease surveillance data collected from captive and free ranging deer herds, guidance from the Texas Animal Health Commission, and input from stakeholder groups, the department intends to review the interim rule, along with the interim breeder rules, and Triple T (Permits to Trap, Transport, and Transplant Game Animals and Game Birds) rules following the close of the deer season and present the results of that review to the Parks and Wildlife Commission (Commission) in the spring of 2016 for possible modifications.

         The proposed new rule is part of a more comprehensive regulatory response intended to increase the probability of detecting chronic wasting disease (CWD) if a deer infected with CWD is released from a DMP facility. The proposed new rule is also part of a broader cooperation between the department and the Texas Animal Health Commission (TAHC) to protect susceptible species of exotic and native wildlife from CWD. TAHC is the state agency authorized to manage “any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable, even if the agent of transmission is an animal species that is not subject to the jurisdiction” of TAHC. Tex. Agric. Code §161.041(b).

         CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a transmissible spongiform encephalopathy (TSE), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE) in cattle, and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

         Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease in free-ranging populations has been correlated to deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. The implications of CWD to the multi-billion dollar ranching, hunting, and wildlife management economies in Texas are significant, unless it is contained and controlled.

         Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, and Deer Management Permit (DMP) regulations for white-tailed deer at 31 TAC Chapter 65, Subchapter D, the department may allow the temporary possession of free-ranging white-tailed or mule deer for breeding purposes within an enclosure on property surrounded by a fence capable of retaining deer. At the current time, there are no rules authorizing DMP activities for mule deer.

         In addition to authorizing the temporary possession of free-ranging white-tailed deer for breeding purposes, department regulations authorize the introduction of a buck deer from a deer breeding facility into a DMP facility for breeding purposes.  Deer breeders are permitted under Parks and Wildlife Code, Chapter 43, Subchapter L and 31 TAC Chapter 65, Subchapter T. The current rules provide, among other things, that a buck deer introduced to a DMP pen from a deer breeding facility may be liberated from the DMP pen to the surrounding or adjacent high-fenced acreage identified in the deer management plan associated with the DMP facility, returned to the deer breeding facility from which the buck deer was transferred, or transferred to another deer breeding facility. All other deer introduced to a DMP pen, whether by trapping from a free-ranging herd or transfer from a deer breeding facility, must be liberated from the DMP enclosure by a date specified by the department in the DMP permit.

         The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas, and has engaged in several rulemakings over the years to address the threat posed by CWD. In 2005, the department closed the Texas border to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and record keeping. (The closing of the Texas border to entry of out-of-state captive white-tailed and mule deer was updated, effective in January 2010, to address other disease threats to white-tailed and mule deer (35 TexReg 252).) Prior to 2012, CWD had not been known to exist in Texas; however, on July 10, 2012, the department confirmed that two mule deer sampled in the Texas portion of the Hueco Mountains tested positive for CWD. In response, the department and the Texas Animal Health Commission (TAHC) convened the CWD Task Force, comprised of wildlife-health professionals and cervid producers, to advise the department on the appropriate regulatory and policy measures to be taken to protect white-tailed and mule deer in Texas. Based on recommendations from the CWD Task Force, the department subsequently adopted new rules in 2013 (37 TexReg 10231) to implement a CWD containment strategy in far West Texas. The rules among other things require deer harvested in a specific geographical area to be presented at designated check stations to be tested for CWD.

         On June 30, 2015, the department received confirmation that a two-year-old white-tailed deer held in a deer breeding facility in Medina County (“index facility”) had tested positive for CWD. Subsequent testing confirmed the presence of CWD in additional white-tailed deer at the index facility. The source of the CWD at the index facility is unknown at this time. Within the last five years, the index facility accepted deer from 30 other Texas deer breeding facilities and transferred 835 deer to 147 separate sites (including 96 deer breeding facilities, 46 release sites, and three Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico). The department estimates that in the past five years, more than 728 locations in Texas (including 384 deer breeding facilities) either received deer from the index facility or received deer from a deer breeding facility that had received deer from the index facility. CWD has subsequently been detected in an additional deer breeding facility.

         In response, the department engaged in a vigorous effort to involve and solicit input from other regulatory agencies, various stakeholder groups, and the regulated community to develop a regulatory response that both discharged the department’s duty to protect the wildlife resources of the state for the enjoyment of the people and to the greatest extent possible minimized disruption to the regulated community. As a result of that effort, the department on August 18, 2015, adopted emergency rules governing deer breeder permits (40 TexReg 5566). Interim rules governing deer breeder permits were proposed on September 21, 2015 (40 TexReg 6856), and were approved, with changes, by the Parks and Wildlife Commission on November 5, and will be published in a future issue of the Texas Register.

         Those rules (§§65.90-65.93 of this subchapter, or “CWD deer breeder rules”) address CWD testing requirements and movement restrictions for white-tailed deer and mule deer held under the authority of deer breeder permits issued by the department. The rules set forth specific CWD testing requirements for deer breeders, which would have to be satisfied in order to transfer deer to other deer breeders, DMP facilities, or for purposes of release. The CWD deer breeder rules also impose CWD testing requirements on sites where certain breeder deer are liberated (release sites). The CWD deer breeder rules create a tiered system of testing requirements for deer breeding facilities and release sites based on the level of risk of transmission of CWD. To facilitate this testing, the CWD deer breeder rules classify breeding facilities and release sites according to degree of CWD testing and level of risk of exposure to CWD.

         Epidemiological science dictates that a population receiving individuals from a higher risk population is itself at greater risk. Therefore, the CWD deer breeder rules address transfers from higher risk to lower risk populations by requiring the receiving deer breeding facility or release site to comply with the testing requirements associated with the status of the originating facility, if the status of the originating facility is lower than the status of the receiving facility. Because deer from deer breeding facilities and release sites may be introduced into a DMP facility, and then either released or returned to a breeding facility, it is necessary to identify how DMP activities impact the level of testing required by breeding facilities and release sites that receive deer from DMP facilities. The level of risk is based on the degree of testing and exposure to CWD-positive or CWD-exposed animals.

         The department notes for purposes of clarification that the provisions of §§65.90-65.93 of this subchapter would also apply to the proposed new rule. The applicable provisions would include, for example, the definitions in §65.90 of this subchapter and the testing requirements for the categories and classes of breeding facilities and release sites established in §§65.90-65.93 of this subchapter.

         As noted previously, the new rule proposed herein, if adopted, would replace the emergency rules adopted on October 5. The proposed new rule differs from the emergency rule as follows:

1. In subsection (a)(1) of the emergency rule, a DMP facility is described as “a property (including the pen in which deer are temporarily detained for breeding purposes and the high-fenced acreage to which the deer are released).” This is technically incorrect. In TWIMS (defined in §65.90 of this title as the “department’s Texas Wildlife Information Management Services (TWIMS) online application”), each DMP property gets one facility identification for the enclosure (pen) in which deer are temporarily detained and one facility identification for surrounding acreage to which the deer are released. To avoid confusion, the proposed new rule would establish that the word “facility” as used in the rule text means the DMP pen.

2. In subsection (b) of the emergency rule, the department set forth the various requirements and restrictions for Level 2 and Level 3 DMP facilities. Level 1 DMP facilities were not addressed because the Level 1 DMP category is a default value, consisting of all DMP facilities that either do not receive breeder deer at all or received breeder solely from TC 1 breeding facilities (and did not receive any deer from a Class II or Class III release site).  As a result, the acreage to which deer are released from those facilities are Class 1 release sites and no CWD testing is required under §§65.90-65.93 of this subchapter.

3. Subsection (b)(4) of the emergency rule imposed tagging requirements for deer introduced to a Level 3 DMP facility or released on a Class III release site. The department has determined that because paragraphs (1) – (3), (5) and (6) address the assignment of DMP category designations, paragraph (4) interrupts that process, since it addresses a different topic; therefore, in the proposed new rule  the tagging requirements from subsection (b)(4) of the emergency rule are designated as subsection (b)(8).

         Proposed new §65.94(a) would set forth two general provisions.

         Proposed new §65.94(a)(1) would identify exactly what is meant by “DMP facility.” A DMP facility is an enclosure in which deer are temporarily detained for breeding purposes permitted under the provisions of Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP)). The provision is necessary in order to prevent any ambiguity arising from the use of the term “DMP facility.”

         Proposed new §65.94(a)(2) would define “status” as “the level of testing required by this division for any facility registered in TWIMS (deer breeding facility, trap site, release site, or DMP facility).” The definition of “status” is necessary because the status of any given facility determines the testing and movement requirements that apply to the facility and because it is necessary to clarify that the term applies to all types of permits authorizing the possession of live deer. The proposed new rule would also establish that the highest status for DMP facilities is Level 1 and the lowest status is Level 3, which is necessary to prevent potential misinterpretation. The designation of DMP facility status will also provide consistency with the §§65.90-65.93 of this subchapter, regarding Chronic Wasting Disease – Movement of Breeder Deer, which designate a Transfer Category (TC) status (TC 1, TC 2, TC 3) for deer breeding facilities and a status for release sites (Class I, II, III). Under §§65.90-65.93 of this subchapter, the lower number is the higher status. For example, for deer breeding facilities, a TC 1 is the highest status.  For release sites, Class I is this highest status.

         Proposed new §65.94(b) would set forth several provisions specific to the acquisition and transfer of deer for DMP purposes.

         Proposed new §65.94(b)(1)-(7) would set forth the status (and therefore, the testing requirements) for release sites for deer from DMP facilities based on the status of the source of deer obtained for DMP purposes.

         Proposed new subsection (b)(1) would stipulate that a DMP facility that is not a Level 2 or Level 3 DMP facility is a Level 1 DMP facility. Because the status of a deer breeding facility or a release is not impacted by receiving deer from a Level 1 DMP facility, no additional provisions are needed to address the impact of deer being held in a Level 1 DMP facility.

         Proposed new subsection (b)(2) would stipulate that a DMP facility that receives deer from a Class II release site or TC 2 breeding facility is a Level 2 DMP facility, unless the DMP facility receives deer from a TC 3 breeding facility or Class III release site.

         Proposed new subsection (b)(3) stipulates that a DMP facility receiving deer from a TC 3 breeding facility or Class III release site is a Level 3 DMP facility and that the release site to which the deer are liberated from the DMP pen becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year (the first day of lawful deer hunting).

         Proposed new subsection (b)(4) would stipulate that if a breeder deer is transferred from a TC 3 breeding facility to a Level 1 or 2 DMP facility, the DMP facility immediately becomes a Level 3 DMP facility and the release site to which the deer are liberated from the DMP pen becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year.

         Proposed new subsection (b)(5) would provide that if a breeder deer is transferred from a TC 2 breeding facility to a Level 1 DMP facility, the DMP facility immediately becomes a Level 2 DMP facility and the release site to which with deer are liberated from the DMP facility becomes a Class II release site beginning on the Saturday nearest to September 30 of the following year (the first day of lawful deer hunting), unless the release site is or becomes a Class III release site pursuant to other provisions of this division.

         Proposed new subsection (b)(6) would provide that if a breeder deer is transferred to a deer breeding facility from a DMP facility of lower status, the breeding facility receiving the breeder deer automatically assumes the numeric status of the DMP facility. For example, if a breeder deer is transferred to a TC 2 breeding facility from a Level 3 DMP facility, the deer breeding facility becomes a TC 3 breeding facility. Proposed new subsection (b)(7) would provide that a DMP facility automatically becomes a Level 3 DMP facility if deer are introduced to the DMP facility from a Tier 1 facility. (A Tier 1 facility is a facility that has a direct connection to a CWD-positive facility, and is defined in §65.90(21) of this subchapter).

         Proposed new §65.94(b)(8) would prohibit the introduction of a breeder deer into a Level 3 DMP facility unless the deer is tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear. (RFID and NUES ear tags are defined in current §65.91.) Proposed new §65.94(b)(8) would also prohibit the release of a breeder deer onto a Class III release site unless the deer is tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear. A Level 3 DMP facility is a highest risk DMP facility. Similarly, deer within a Class III release site are at a higher risk for CWD. Therefore, the department believes that breeder deer introduced into a Level 3 DMP facility or released onto a Class III site should be readily identifiable for purposes of subsequent CWD testing. Therefore, the proposed new rule would require such deer to be ear-tagged prior to release.

2. Fiscal Note.

         Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rule as proposed is in effect there will be no fiscal implications to state and local governments as a result of enforcing or administering the rule as proposed, as department personnel currently allocated to the administration and enforcement of the permit programs affected will continue administer and enforce the rules as part of their current job duties.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be a reduction of the probability of CWD being spread from facilities where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and ensuring the continued beneficial economic impacts of hunting in Texas.

         (B) There could be adverse economic impact on persons required to comply with the rule as proposed.

         As noted previously, a DMP allows the introduction of breeder deer into a DMP facility for purposes of propagation.  Except for fawns born in a DMP facility during the permit year, no DMP facility may contain more than 1 buck deer and 20 doe deer.  Also, deer may be introduced to DMP facility  beginning on September 1 and no later than the breeding chronology  for the ecoregion in which the DMP facility is located, which ranges from October 21 (Gulf Prairies and Marshes) to December 14 (South Texas Plains). A person seeking to engage in DMP activities, must obtain a new DMP permit each year. Deer held in a DMP facility must be allowed to leave the DMP facility by no later than 45 days prior to the trapping deadline of the subsequent DMP trapping season for the ecoregion in which the DMP facility is located, which ranges from September 6 (Gulf Prairies and Marshes) to October 30 (South Texas Plains), or a date specified in the permit.

         Upon conclusion of DMP activities, a buck introduced into the DMP pen from a deer breeding facility may be returned to the originating deer breeding facility, moved to another deer breeding facility, or released. All other deer held in the DMP facility must be released to the adjoining high-fenced acreage.

         The proposed new rule imposes no new testing requirements in addition to those imposed on deer breeding facilities and release sites by §§65.90-65.93 of this subchapter. While there are no testing requirements directly imposed on DMP permittees during the temporary detention of deer pursuant to a DMP permit, the release of breeder deer obtained from a TC 2 or TC 3 deer breeding facility or deer from a Class II release site (via Triple T permit) could result in additional testing requirements for the DMP acreage (the high-fenced acreage in which the DMP facility is located) to which the DMP deer are released. There also could be testing requirements for a deer breeder who acquires or re-acquires a breeder buck from a DMP facility of lower status than the receiving deer breeding facility since the receiving facility assumes the status, if lower, of the originating facility. There would be no additional testing requirements as a result of DMP activities if the DMP facility receives no breeder deer and no deer via Triple T permit from a Class II release site, or if the DMP facility only receives breeder deer and deer via Triple T permit from deer breeding facilities and release sites that have a status that is equal to or higher than the DMP facility. However, if a release site or deer breeding facility receives deer from a DMP facility that has lower status than the receiving deer breeding facility or release site, the deer breeding facility or release site could incur additional costs associated with CWD testing.

         With regard to testing, if a release site becomes a Class II release site as a result of the introduction of deer onto the release site following DMP activities, under the provisions of §65.90-65.93 of this subchapter the following number of deer would have to be tested for CWD in the following year: 50 percent of the number of breeder deer released at the site between the last day of lawful deer hunting at the site in the previous year and the last day of lawful deer hunting at the site in the current year, or 50 percent of all hunter-harvested deer, as well as 50 percent of any hunter-harvested deer that were released breeder deer, which may be counted to satisfy the total testing requirement.

         If a release site becomes a Class III release site as a result of the introduction of deer onto the release site following DMP activities, under the provisions of §65.90-65.93 of this subchapter the following number of deer would have to be tested for CWD in the following year: 100 percent of all hunter-harvested deer or one hunter-harvested deer per breeder deer released between the last day of lawful deer hunting at the site in the previous year and the last day of lawful deer hunting. The exact number of deer that must be tested at Class II and Class III release sites would depend on the number of hunter-harvested deer and the number of breeder deer released on the property.

         The estimated cost for each test and the cost of compliance for deer breeders is as specified in the discussion of the proposed rule’s impact on small and micro-business later in this preamble.

         (C) There could be adverse economic impact on small businesses and microbusinesses required to comply with the rule as proposed.

         Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

         Although many DMP permittees engage in the for-profit sale of the opportunity to hunt deer that have been held under a DMP and subsequently liberated, Parks and Wildlife Code, §62.021, prohibits the sale, offer for sale, purchase, offer to purchase, or possession after purchase of a live game animal, but makes an exception for activities conducted under a deer breeder permit which allows the purchase and sale of deer. Therefore, the department has determined that the since activities pursuant to a DMP permit are statutorily not for profit, the proposed rulemaking does not impose any adverse economic impacts from the perspective of any DMP permittee’s status as a for-profit enterprise, be it a small business or microbusiness or not.

         Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to “engage in the business of breeding breeder deer in the immediate locality for which the permit was issued” and to “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation.” As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer.

         Since the rule as proposed could impact the ability of a deer breeder to engage in certain activities undertaken to generate a profit, the proposed rule may have an adverse impact on deer breeders. However, those impacts would result from a deer breeder’s receipt of deer from a DMP facility of lower status than the breeder facility. It should be emphasized that it is unlikely that a deer breeder would seek to introduce a deer of lower status into a deer breeding facility.

         It should also be noted that the variety of business models utilized by deer breeders makes meaningful estimates of potential adverse economic impacts difficult. Although a deer breeder has the permit privilege to buy and sell breeder deer and many deer breeders participate in a market for breeder deer, other deer breeders are interested only in breeding and liberating deer on their own property for hunting opportunity. Once a breeder deer is liberated, it cannot be returned to a breeding facility and assumes the same status as all other free ranging deer. Thus, if the deer breeder is engaged primarily in buying and selling deer, the potential adverse economic impact is greater than that for a deer breeder who engages in deer breeding activities primarily for purposes of release onto that person’s property. The department does not require deer breeders to report the buying or selling prices of deer. However, publicly available and anecdotal information indicates that sale prices, especially for buck deer, may be significant. The sale price for a single deer may range from hundreds of dollars to many thousands of dollars.

         It should also be noted that some aspects of this analysis are based on anticipated marketplace behavior which cannot be accurately predicted. In addition, to the extent that any marketplace analysis can be conducted, it is difficult, if not impossible, to accurately separate and distinguish marketplace behavior that is the result of the proposed rules from marketplace behavior that is the result of the discovery of CWD. For reasons unrelated to the regulations, it is possible, perhaps even likely, that breeders and release site owners would be reluctant to acquire a breeder deer from a facility with a close relationship (as indicated by the facility’s status) to a facility at which CWD has been detected.

         For deer breeders, the department has determined that for TC 1 facilities there will likely be no adverse economic impact on sales as a result of the proposed new rule, so long as the TC 1 facility does not receive a breeder buck deer from a DMP facility of a lower status. Under §§65.90-65.93 of this subchapter, only those breeding facilities that are not Tier I facilities and have obtained a “fifth-year” or “certified” status from TAHC, are considered TC 1 facilities.  In order to maintain “fifth year” or “certified” from TAHC, such facilities may receive deer only from other “fifth-year” or “certified” breeding facilities. As a result, transfers of breeder deer from TC 1 facilities are subject to the fewest restrictions under §§65.90-65.93 of this subchapter. Therefore, breeder deer from a TC 1 facility can more easily be sold to other breeders or to landowners for purposes of liberation on a release site. In addition, TC 1 facilities are already subject to monitoring and testing at a higher level. Department records indicate that there are currently 63 TC 1 facilities in the state.

         If a TC 1 deer breeding facility becomes a TC 2 facility as a result of receipt of a breeder buck deer from a DMP facility, the adverse economic impact of the proposed new rule would consist of the cost of the additional testing requirements (described in more detail later in this preamble) and possible loss of sales to TC 1 facilities and Class I release sites. The change in status would not prohibit the transfer of breeder deer by an affected facility, but because of the change (lowering) in status resulting from the proposed new rules, it can be assumed that TC 1 facilities will be less likely destinations for breeder deer coming from DMP facilities of lower status.

         Department records indicate that there are currently 759 TC 2 facilities in the state, and that in the last year, 528 of them transferred breeder deer to facilities that are now TC 1 or Class I release sites. The most breeder deer transferred from any single breeding facility was 175, but the overwhelming majority of transfers involved 10 or fewer deer. If a TC 1 deer breeding facility’s status is lowered to TC 2 as a result of the receipt of a breeder buck deer from a Level II DMP facility, the impact to the deer breeder could include the loss of sales and any attendant profit from the sale of deer due to the deer breeder’s lower status. However, as noted above, a TC 1 facility is not a likely destination for a deer from a DMP facility of lower status.

         For facilities that become TC 3 facilities as a result of acquiring breeder deer from a Level 3 DMP facility, the adverse economic impact of the proposed new rules would consist of the cost of the additional testing requirements and possible loss of sales to TC 1 and TC 2 facilities and Class I and Class II release sites. Because the proposed new rule would cause any deer breeding facility that accepts deer from a DMP facility of lower status to assume the status (and regulatory obligations, such as testing) of that originating facility, it can be assumed that higher status facilities and release sites will be less likely destinations for breeder deer coming from facilities of lower status.

         Because the issuance period for DMPs had not concluded as of the submission of the proposed new rule, the department cannot provide a definitive value for the number of DMPs issued for the 2015-16 permit year; however, in the 2014-2015 permit year, 168 DMPs were issued and the final value for the current year is expected to be similar. Of the permits issued thus far for this year, 111 did not involve breeder deer. Four DMP facilities have received breeder deer only from a TC 1 deer breeding facility. Forty-three DMP facilities have received breeder deer from a TC 2 deer breeding facility. One DMP facility has received deer from a TC 3 breeding facility.

         With regard to the degree of impact due to possible loss of sales, the department does not require holders of deer breeder permits to disclose the dollar values of sales and purchases of breeder deer; therefore, an exact quantification of the possible impact of the proposed new rule on deer breeding facilities due to lost sales cannot be calculated. However, based on public and anecdotal information, such impact could be from few hundred dollars or less per deer or to thousands of dollars per deer.

Testing Costs

         In all cases, the costs to persons required to comply, as well as to any small or microbusiness affected by the proposed new rule, would consist of the cost of CWD testing. The cost of a CWD test administered by the Texas Veterinary Medicine Diagnostic Lab (TVMDL) on a sample collected and submitted by a DMP permittee is a minimum of $46, to which is added a $6 submission fee (which may cover multiple samples submitted at the same time). If a whole head is submitted to TVDML there is an additional $20 sample collection fee, plus a $20 disposal fee. Thus, the fee for submitting an obex or obex/medial retropharyngeal lymph node pair would be $52, plus any veterinary cost (which the department cannot quantify) and the fee for submitting an entire head for testing would be $92. Therefore, the department estimates that the direct economic impact of the proposed new rule on persons required to comply would be between $52 and $92 per deer per year for each permittee. If the sample is collected, fixed, and submitted by a private veterinarian, the cost could be higher. The cost to any person, small business or microbusiness would be the cost of a CWD test multiplied by the number of deer required to be tested.

Alternatives Considered

         The department considered several alternatives to achieve the goals of the proposed new rule while reducing potential adverse impacts on small and micro-businesses and persons required to comply. The department considered proposing no rule. This alternative was rejected because the presence of CWD in the state is not hypothetical, but has been confirmed and presents an actual, direct threat to free-ranging and farmed cervid populations and the economies that depend upon them. A regulation that clearly sets out prudent and sensible restrictions on the regulated community is more likely to achieve the desired result of stemming the spread of CWD than having no regulations. The department concluded that the need to protect the wildlife resources that sustain the state’s annual multi-billion-dollar hunting industry outweighs the temporary adverse impacts to small and micro-businesses and persons required to comply.

         The department also considered, in lieu of a regulatory response, the alternative of prohibiting the transfer of breeder deer to DMP facilities except from TC 1 facilities. This alternative was rejected because it would result in disruption of the bulk of interactions between deer breeders and DMP holders, which, with proper monitoring, would not be unnecessary.

         (D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not result in direct impacts to local economies.

         (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed new rules. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

4. Request for Public Comment.

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

5. Statutory Authority.

         The new rule is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure, and Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1), and  §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

         The proposed new rule affects Parks and Wildlife Code, Chapter 43, Subchapters C, R and R-1, and Chapter 61.

         §65.94. Chronic Wasting Disease — Deer Management Permit Provisions.

                 (a) General Provisions.

                         (1) A DMP facility is an enclosure in which deer are temporarily detained for breeding purposes permitted under the provisions of Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP)).

                         (2) For the purposes of this section, “status” means the level of testing required by this division for any facility registered in TWIMS (deer breeding facility, trap site, release site, or DMP facility). For the levels of DMP facilities established in this section, the highest status is Level 1 and the lowest status is Level 3.

                 (b) Special Provisions.

                         (1) A DMP facility that is not a Level 2 or Level 3 DMP facility is a Level 1 DMP facility.

                         (2) A DMP facility that receives deer from a Class II release site or a TC 2 breeding facility is a Level 2 DMP facility unless the DMP facility receives deer from a TC 3 breeding facility or Class III release site.

                         (3) A DMP facility that receives deer from a Class III release site is a Level 3 DMP facility.

                         (4) If a breeder deer is transferred from a TC 3 breeding facility to a DMP facility, the DMP facility immediately becomes a Level 3 DMP facility and the release site to which the deer are liberated from the DMP pen becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year.

                         (5) If a breeder deer is transferred from a TC 2 breeding facility to a Level 1 DMP facility:

                                  (A) the DMP facility immediately becomes a Level 2 DMP facility; and

                                  (B) the release site to which the deer are liberated from the DMP pen becomes a Class II release site beginning on the Saturday nearest to September 30 of the following year, unless the release site is or becomes a Class III release site pursuant to other provisions of this division.

                         (6) If a breeder deer is transferred to a deer breeding facility from a DMP facility of lower status, the deer breeding facility receiving the breeder deer automatically assumes the numeric status of the DMP facility. For example, if a breeder deer is transferred to a TC 2 breeding facility from a Level 3 DMP facility, the deer breeding facility becomes a TC 3 breeding facility.

                         (7) A DMP facility automatically becomes a Level 3 DMP facility if deer are introduced to the DMP facility from a Tier 1 facility.

                         (8) No person may introduce a breeder deer into a Level 3 DMP facility or allow the release of a breeder deer on a Class III release site unless the deer has been tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on