Commission Agenda Item No. 3
Exhibit A

DISEASE DETECTION AND RESPONSE RULES

CWD CONTAINMENT AND SURVEILLANCE/CARCASS MOVEMENT RESTRICTIONS

PROPOSAL PREAMBLE

1. Introduction

         The Texas Parks and Wildlife Department (the department) proposes the repeal of §65.83 and §65.88, amendments to §§65.80-65.82 and 65.84-65.86, and new §65.88 and §65.89, concerning Chronic Wasting Disease.

         On July 10, 2012, the department confirmed the first known cases of Texas wildlife infected with chronic wasting disease (CWD) in two free-ranging mule deer in the Hueco Mountains of far west Texas. With that discovery, Texas joined 20 other states and two Canadian provinces where CWD has been detected in free-ranging or captive environments.   In response, the department adopted §§65.80-65.88 (37 TexReg 10231), effective January 2, 2013, to establish zones in which the permitted movement of deer is more restricted in order to impede or prevent the spread of CWD, and to implement mandatory check stations in certain areas to determine the geographic extent and prevalence of the disease.

         On June 30, 2015, the department received confirmation that a two-year-old white-tailed deer held in a permitted deer breeding facility in Medina County had tested positive for CWD, which was followed by positive test results for white-tailed deer in three additional deer breeding facilities. In addition, a hunter-harvested free-ranging mule deer in Hartley County in the Texas Panhandle tested positive for CWD in the past year. In response, the department first adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, then developed interim rules (41 TexReg 815) intended to function through the 2015-2016 hunting season until permanent rules could be implemented. Working closely with the Texas Animal Health Commission (TAHC), the regulated community, and key stakeholders, and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department developed a rule package to implement a comprehensive CWD management strategy associated with permitted deer management practices involving the permitted movement of live deer (41 TexReg 815). Those rules were approved for adoption by the Parks and Wildlife Commission, with changes, on June 20, 2016 (referred to herein as “comprehensive CWD management rules”).  The notice of adoption for the comprehensive CWD management rules will be published in the Texas Register in August of this year. The repeal, amendments, and new section are necessary to harmonize the current rules in Chapter 65, Subchapter B, Division 1 with the rules in Chapter 65, Subchapter B, Division 2, which implement the comprehensive CWD management strategy and to modify types and extent of the zones in which the permitted movement of deer and the movement of deer carcasses are restricted.

         The proposed rules are a result of cooperation between the department, TAHC, and the department’s CWD Task Force, comprised of wildlife-health professionals and cervid producers and are intended to protect susceptible species of exotic and native wildlife from CWD.

         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 TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found 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 to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either farmed or free-ranging cervid populations. The potential implications of CWD for Texas and its annual, multi-billion dollar ranching, hunting, real estate, tourism, and wildlife management-related economies could be significant, unless it is contained and controlled.

         The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas. Since 2002, more than 40,000 “not detected” CWD test results have been obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted approximately 20,000 “not detected” test results as well. The intent of the proposed rules is to reduce the probability of CWD being spread from areas and deer breeding facilities where it might exist and to increase the probability of detecting and containing CWD if it does exist.

        Under Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1, the department regulates the possession of white-tailed deer and mule deer for various purposes. Subchapter C governs permits for scientific research, zoological collection, rehabilitation, and educational display of protected wildlife, which includes deer. Subchapter E governs Triple T activities (trap, transport, and transplant), in which game animals or game birds are captured and relocated to adjust populations. Subchapter E also governs Urban White-tailed Deer Removal Permits and Permits to Trap, Transport, and Process Surplus White-tailed Deer (TTP). Unless otherwise stated, the permits issued under authority of Subchapter E are collectively referred to herein as “Triple T” permits. Subchapter L governs deer breeder permit activities, which include, among other things, possession of captive-raised deer within a facility for breeding purposes and release of such deer. Subchapters R and R-1 govern Deer Management Permit (DMP) activities for white-tailed deer and mule deer, respectively, in which free-ranging deer may be captured and temporarily retained for breeding purposes. The department notes that although DMPs for mule deer were authorized by the legislature in 2011, no DMPs for mule deer have been issued because the department has deferred promulgation of regulations pending acquisition of requisite data to develop biologically defensible rules and address disease threats, including CWD.

        Triple T, deer breeder permits, and DMP all authorize release of deer under certain circumstances. Additionally, the permits governed by Parks and Wildlife Code, Chapter 43, Subchapter C, can also include permit conditions for release.

        From an epidemiological point of view, the higher the density of susceptible organisms, the more likely disease transmission is to occur, if it exists in a population. Obviously, deer kept in circumstances (facilities, pens, trailers, etc.) in which densities are many times higher than what occurs naturally are more likely to both manifest and spread communicable diseases at a higher rate or in greater numbers than would occur in a free-ranging populations. Therefore, the proposed rules are designed and intended to provide reasonable assurance that once CWD is detected it is quickly isolated and not spread as a result of increased concentration of deer, the movement of live deer under permits issued by the department, or the movement of carcasses of harvested deer.

        The proposed repeal of §65.83, concerning Buffer Zones, is necessary because buffer zones are being eliminated. The current rules impose a three-tiered cordon approach to address the possibility of CWD being spread via permitted deer movements (deer breeder, Triple T, and DMP activities often involve the physical translocation of animals at distances that are far beyond what is possible by free-ranging animals). Currently, the three cordons are the Containment Zone (the area immediately surrounding the location where a CWD-positive animal has been found), the High-Risk Zone (the area surrounding or adjoining the Containment Zone), and the Buffer Zone (an area surrounding or adjoining the High-Risk Zone). The rules governing permitted deer movement are the most rigorous in the Containment Zone and become successively less rigorous as distance from where the disease was discovered increases. The comprehensive CWD management rules (to be contained in Chapter 65, Subchapter B, Division 2) previously referenced in this preamble impose increased CWD-testing requirements for breeder deer, Triple T trap sites, and DMP sites where breeder are introduced on a statewide basis, which makes the concept of the buffer zone superfluous.

        The proposed amendment to §65.80, concerning Definitions, would eliminate the definition for “buffer zone” for the reasons discussed in the proposed repeal of §65.83. The proposed amendment also would alter current paragraph (4) to eliminate the term “High-Risk Zone” and replace it with “Surveillance Zone,” and to remove the language defining such zones as surrounding or being adjacent to a Containment Zone (CZ). The department has determined that the term “high-risk” could inadvertently and unnecessarily stigmatize an area, so a term that more accurately describes the function of the zone has been selected. Additionally, for reasons discussed in the proposed amendment to §65.82, concerning Surveillance Zones; Restrictions, the proposed amendment would eliminate the phrase “adjacent to or surrounding a CZ” from the definition. The proposed amendment also would alter the definition of “susceptible species” in current paragraph (6) to clarify that the term includes parts of animals and is not restricted to a whole animal.

         The proposed amendment to §65.81, concerning Containment Zones; Restrictions, would redefine the boundaries of the CZ currently in effect and create a new CZ in the Texas Panhandle to address the discovery of CWD in Hartley County. The proposal would modify the current CZ by decreasing its current geographical extent in Culberson, El Paso, and Hudspeth counties. The contraction of the CZ in those counties is possible because the department’s surveillance efforts indicate that CWD has not likely spread beyond the Hueco Mountains. Several factors (e.g., cervid population parameters, cervid behavior and life history, historical surveillance intensity, clear boundaries, etc.) are considered when determining the appropriate extent of a CZ or SZ. For example, when CWD was detected just across the New Mexico border in 2012, there was more than a strong possibility that infected mule deer were present in Texas, since the movement of desert mule deer can be as much as 25-30 linear miles.

         The proposed amendment to §65.81 would alter the provisions of paragraph (2)(C) by adding language to allow the recapture of deer that have escaped from a deer breeding facility within a CZ if specifically authorized under a hold order or herd plan issued by TAHC. The department has determined that escaped breeder deer may be epidemiologically significant in some instances and that recapture should be permitted if authorized by TAHC.

         Under current §65.81(2)(A), the movement of deer into, out of, or within a CZ is prohibited, except for department-authorized research. The proposed amendment to §65.81 would add new paragraph (2)(D) to allow TC 1 deer breeding facilities within a CZ to release breeder deer to immediately adjoining acreage (provided the release site and the breeding facility share the same ownership and the release site is high-fenced as required by the comprehensive CWD rules alluded to previously in this preamble). Because TC 1 breeding facilities (more thoroughly described in the comprehensive CWD management rules) represent the lowest risk of spreading CWD, the department considers the release of such breeder deer to adjoining acreage under the same ownership to present a very low risk, but all other movement of breeder deer would continue to be prohibited.

         The proposed amendment to §65.81 also changes the term “deer breeder facility” to “deer breeding facility” for purposes of consistency.

         The proposed amendment to §65.82, concerning High-Risk Zones; Restrictions, would change the title of the section to Surveillance Zones: Restrictions, as previously noted in this preamble, shrink the current zone in effect for far west Texas, create two new zones (one to address the additional CWD discovery in the Texas Panhandle and one to address the discovery of CWD in deer breeding facilities in Medina County), and allow the permitted movement of deer within a SZ under certain circumstances. A Surveillance Zone (SZ) is a geographic area within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected. With respect to proposed new paragraph (1)(C), the department is creating a Surveillance Zone in portions of Bandera, Medina, and Uvalde counties, but not a CZ. The reason for not creating a CZ is two-fold. First, the CWD discovery in this part of the state occurred in breeder deer and deer breeding facilities, which are required by law to be designed and built to both prevent the free movement of deer and contact with free-ranging deer, which coincidentally is imperative for the control and management of CWD. Second, the facilities where CWD was discovered are operating under TAHC herd plans, which restrict deer movement and require CWD testing at an equal or higher level to what is required in a CZ.

         Under the current provisions of §65.82, the permitted movement of deer was restricted to breeder deer being transferred to or from a deer breeding facility that had achieved “Certified” status in the TAHC Herd Certification Program. With the adoption of the comprehensive CWD management rules alluded to earlier in this preamble, the testing, TAHC herd status, and herd inventory requirements of current §65.82 with respect to breeder deer are no longer necessary in §65.82; however, because the comprehensive CWD management rules create a classification system that identifies breeding facilities and prospective DMP and Triple T trap sites that are epidemiologically determined to present limited risk of CWD transfer, the proposed amendment would add new subparagraphs (B)-(D) to paragraph (2) to address that fact and prescribe the criteria under which those activities would be allowed.

         Proposed new §65.82(2)(B) would address deer breeding facilities and provide that except as provided by the provisions of Division 2 of Subchapter B (the comprehensive CWD management rules), TC 1 breeding facilities within a SZ may transfer, receive, or liberate breeder deer within or beyond the SZ, because they represent a low risk of CWD. Similarly, the proposed amendment would allow TC 2 breeding facilities to receive deer from any deer breeder in the state authorized to transfer deer and to transfer, receive, or liberate deer within the SZ, but not beyond the SZ. TC 2 breeding facilities are those facilities that are not directly linked to a CWD-positive facility but at the same time cannot provide sufficient epidemiological data to achieve TC 1 status; therefore, because breeder deer transferred from breeding facility to breeding facility are always within a high-fenced area, which the comprehensive CWD management rules also require for release sites, these activities can be allowed within the SZ without increasing the chance of spreading CWD beyond the SZ in the event the disease does occur within the SZ. The proposed amendment to §65.82 also would add new subparagraph (B)(ii) to allow the recapture of deer that have escaped from a deer breeding facility within a SZ if specifically authorized under a hold order or herd plan issued by TAHC. As stated previously in this preamble, the department has determined that escaped breeder deer may be epidemiologically significant in some instances and that recapture should be permitted only if authorized by TAHC.

         Proposed new §65.82(2)(C) would address the movement of deer pursuant to Triple T permits and would provide for the approval of Triple T releases in a SZ, but prohibit trapping for Triple T purposes within a SZ. From an epidemiological standpoint, the release of deer within a SZ does not present a significant risk of spreading or accelerating the spread of CWD, and in any case, the department will not approve a release that would result in deer densities greater than the habitat conditions and deer populations at the release site can sustain, which would be the major concern in evaluating disease propagation potential. Conversely, the trapping of deer from within a SZ, because the source population’s disease potential is unknown, represents an unacceptable risk of disease propagation in the absence of adequate sampling data to provide sufficient confidence that CWD does not exist within that area.

         Proposed new §65.82(2)(D) would address the movement of deer pursuant to a DMP and would provide for the issuance of DMPs in SZs with the proviso that any breeder deer introduced to a DMP must be released to the designated release site and cannot be returned to a deer breeding facility. A DMP authorizes the trapping and temporary detention of free-ranging deer at the trap site for breeding purposes. Breeder deer may be introduced to a DMP pen as well, but since the epidemiological status of free-ranging deer within high-fenced enclosures is unknown, it is problematic to allow breeder deer exposed to such deer to be returned to a breeding facility.

         The proposed amendment to §65.84, concerning Powers and Duties of the Executive Director, would alter the terminology used in the section in order to conform the terminology with the changes proposed elsewhere in this rulemaking.

         The proposed amendment to §65.85, concerning Mandatory Check Stations, would make nonsubstantive changes to terminology to comport the section with amendments being made to other sections.

         The proposed amendment to §65.86, concerning Preemption, would create an exception for the comprehensive CWD management rules contained in Division 2 of the subchapter. The current provision allows Division 1 to control in instances of conflict with other provisions of Chapter 65, but in order for the proposed amendments to function as intended, the current rule must be amended to allow regulatory primacy for the provisions of Division 2 in the event of conflicts.

         Proposed new §65.88, concerning Deer Carcass Movement Restrictions, would set forth the conditions under which certain parts of a susceptible species harvested within a CZ or SZ could be lawfully transported from the CZ or SZ where the harvest occurred.

         Proposed new §65.88(a) would prohibit the possession or transport of certain parts of a susceptible species (white-tailed deer or mule deer) taken in a state, province, or other place outside Texas where CWD has been detected in free-ranging or captive herds.  CWD prions are known to be present in tissues of infected animals, especially brain, spinal cord and viscera; thus, carcasses with these tissues entering Texas from other states and countries where CWD has been confirmed represent a source of environmental contamination and a potential infection pathway to free-ranging and farmed deer in Texas. For the same reason, proposed new subsection (a)(2) would prohibit the transport of any part of a susceptible species from within a CZ or SZ, except in compliance with the proposed new section.

         Proposed new §65.88(b) would establish exceptions to subsection (a), consisting of various types of processing that would have to take place in order to lawfully transport susceptible species from the place of harvest. The exceptions consist of meat that has been cut up and packaged (boned or filleted); a carcass that has been reduced to quarters with no brain or spinal tissue present; a cleaned hide (skull and soft tissue must not be attached or present); whole skull (or skull plate) with antlers attached, provided the skull or skull plate has been completely cleaned of all soft tissue; finished taxidermy products; cleaned teeth; or tissue prepared and packaged for delivery to and use by a diagnostic or research laboratory. In general, these types of processing reflect the removal of the types of tissues that are known to concentrate CWD prions.

         Proposed new §65.88(c) would provide that the exceptions created by subsection (b) apply if the susceptible species is processed within the CZ or SZ where it was harvested. In order to minimize the potential that brain or spinal tissue potentially infected with CWD could be transported beyond a CZ or SZ and present a risk of environmental contamination, the processing of the susceptible species must occur within the CZ or SZ where the animal is killed. The only exceptions are the transport of the head to a check station for tissue extraction and the transport of a head to a taxidermist.

         Proposed new §65.88(d) would allow a susceptible species harvested in a CZ or SZ and processed in accordance with the provisions of subsections (b) and (c) to be transported from the CZ or SZ, provided it is accompanied by a department-issued check-station receipt, which must remain with the susceptible species until it reaches a final destination. At the current time, the only mandatory check stations in Texas are located in the one CZ that has been established in west Texas; however, additional mandatory check stations will be designated in the Panhandle area in Dallam, Deaf Smith, Hartley, Moore, Parmer, Potter, Randall, Oldham, and Sherman counties. Therefore, the proposed provision would allow the transport of susceptible species only if the required processing has occurred and the head has been presented at a check station.

         Proposed new §65.88(e) would allow susceptible species harvested from a CZ or SZ, other state, Canadian province, or other place outside of Texas to be transported to a taxidermist for taxidermy purposes; however, in order to minimize the potential for environmental contamination, all brain material, soft tissue, spinal column and any unused portions of the head would be required to be disposed of in a landfill permitted by the Texas Commission on Environmental Quality (TCEQ).  The proposed new subsection does not exempt hunters within a CZ or SZ from the requirement, except as specifically authorized by the department, to submit the head of a susceptible species harvested within a CZ or SZ to a check station for tissue collection.

         Proposed new §65.88(f) would exempt deer harvested in Surveillance Zone 3 from the mandatory check station requirement and documentation requirements of the section. The department was approached by concerned county officials and landowners in Medina County who committed to organizing a volunteer hunter and landowner effort to provide the department with a sufficient number of valid “not detected” CWD test results, which would allow the department to make an epidemiologically sound determination about the prevalence (if any) of CWD within Surveillance Zone 3.

         Proposed new §65.89, concerning Penalties, would state the statutory penalties for violations of the proposed new rules for ease of reference.

2. Fiscal Note.

         Mr. Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of the affected department programs will administer and enforce the rules as part of their current job duties and testing costs associated with the rules will be absorbed within current budgetary resources.

3. Cost/Benefit Note.

         Mr. Lockwood also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of free-ranging, native deer from communicable diseases, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas. Additionally, the protection of free-ranging deer herds will have the simultaneous collateral benefit of protecting captive herds, and maintaining the economic viability of deer breeding operations.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. 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. As explained in more detail below, the department has determined that except for deer breeders, the proposed rules will not have an adverse impact on small or micro-businesses.

         The department recognizes that Triple T and DMP holders in many cases obtain such permits as part of an effort to enhance the antler quality or increase the density of a deer herd located on a specific property. In turn, such landowners may seek to obtain a higher fee for hunting opportunities based on the perception of a higher-quality hunting experience. However, adverse economic impacts to the pricing structure of hunting opportunity as a result of the proposed new rules, if they occur, are indirect at best. The rules do not directly impact a landowner’s ability to charge a fee for a hunting opportunity on the landowner’s property. In addition, any deer that are introduced to a property as a result of Triple T or DMP activities continue to be a public resource.

Scientific Educational, Zoological, and Rehabilitation Permits

         There will be no adverse economic impacts to persons holding permits issued under Parks and Wildlife Code, Chapter 43, Subchapter C (permits for rehabilitation, scientific collection, educational display, and zoological display). Current rules (31 TAC §69.44(b) and §69.302) prohibit the sale of protected wildlife held under those permits. Since persons possessing these permits undertake permitted activities on a non-profit basis, any person or entity involved in permitted activities would not be engaged in such activities for the purpose of making a profit and would thus not be considered a small or micro-business as defined in Government Code,  §2006.001.

Triple T Permits

         There will be no adverse economic effects to holders of Triple T permits. Triple T permits authorize only the trapping, transporting, and transplantation of a public resource, and wildlife trapped under a Triple T may not be sold, bartered, or exchanged for anything of value (Parks and Wildlife Code, §1.011; 31 TAC §69.117(a)(6)). Therefore, persons engaged in such activities would not suffer a direct adverse economic impact from the proposed rules. Current department rules governing Triple T permit issuance provide for the denial of a permit if the department determines that release of a game animal or game bird may detrimentally affect existing populations or systems (31 TAC §65.103(c)(3)). The rules as proposed would further clarify this authority by prohibiting the trapping of susceptible species from within a CZ or SZ since trapping and moving susceptible species from within a CZ or SZ would have the potential to detrimentally affect other populations of deer by exposure to animals possibly infected with CWD.

Deer Management Permits

         There will be no adverse economic impact to holders of DMPs. As noted previously, the department has not promulgated rules governing DMPs for mule deer; therefore, the only DMP activities affected by the proposed new rules would be DMPs issued for white-tailed deer in SZ 2 or 3. A DMP authorizes the permittee to temporarily detain free-ranging white-tailed deer for breeding purposes, including deer introduced to the DMP pen via Triple T permit and/or deer breeder permit. Except for breeder deer, which under normal circumstances may be returned to a breeding facility, deer held pursuant to a DMP must be released following breeding activities in a DMP pen and may not be sold (Parks and Wildlife Code, §§1.011, 43.621; 31 TAC  §65.133(g)). As a result, persons engaged in such activities would not suffer a direct small or micro-business adverse economic effect from the proposed rules.

Deer Breeder Permits

         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, unlike the other permits impacted by the proposed rules, breeder permits authorize persons to engage in business activities.

         Government Code,  §2006.001(1), defines a small or micro-business as a legal entity “formed for the purpose of making a profit” and “independently owned and operated.” A micro-business is a business with 20 or fewer employees. A small business is defined as a business with fewer than 100 employees, or less than $6 million in annual gross receipts. Although the department does not require holders of breeder permits to provide financial information to the department, the department believes that many if not all persons holding deer breeder permits would qualify as a small or micro-business. Since the rules as proposed would impact the ability of a deer breeder to engage in certain activities undertaken to generate a profit, the proposed rules may have an adverse impact on persons holding a deer breeder permit.

         The proposed new rules would result in potential adverse economic impacts to one deer breeder with a breeding facility in proposed SZ 2 and 12 deer breeders with breeding facilities in proposed SZ 3. There are no breeding facilities located in any existing or proposed CZ. Of the 13 breeding facilities directly affected by the rules as proposed, six are designated as TC 3 breeding facilities. Under the comprehensive CWD management rules alluded to previously in this rulemaking, TC 3 breeding facilities are prohibited from or limited in transferring or releasing deer. The department notes that when the comprehensive CWD management rules become effective, many TC 3 breeding facilities will become TC 2 breeding facilities, although those under a TAHC hold order will remain at TC 3 status. Thus, the amendments as proposed do not impose any direct economic impact on TC 3 breeding facilities because those facilities are already prevented by other rules from engaging in deer movement and are under hold orders and herd plans issued by TAHC, which remain in effect until epidemiological confidence can be established that CWD is not present in those facilities. The remaining breeding facilities directly affected by the proposed rules are TC 2 breeding facilities in Medina, Bandera, and Uvalde counties and none of the facilities are under a TAHC hold order. The proposed rules allow TC 2 facilities to transfer breeder deer to and from other breeding facilities and release sites with a SZ, but prohibit any activity that would result in the movement of deer beyond the SZ. Thus, these 13 breeding facilities could experience adverse economic impacts. The extent of such adverse economic impact would consist of loss of revenue as a result of being unable to move deer into or beyond the SZ. The dollar value of the adverse economic impact is dependent on the volume of deer produced or acquired by any given permittee, which can vary from a few deer to hundreds of deer, and upon the cost of the deer, which can vary from hundreds of dollars to many thousands of dollars. The department does not require deer breeders to report the sale or purchase prices of breeder deer; however, publicly available 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.

         Although a deer breeder permit confers the 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 properties for hunting opportunity. Once a breeder deer is liberated, it cannot be returned to a breeding facility. Thus, if a 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 notes that the designation of a SZ is not necessarily permanent and that the department can change the size and shape of a SZ depending on assessments of prevalence and extent of CWD within a CZ as epidemiological certainty is resolved. The department also notes that the comprehensive CWD management rules alluded to elsewhere in this preamble provide a pathway for all TC 2 breeding facilities to attain TC 1 status within three years. (Under the proposed rules, TC 1 facilities in a SZ may transfer deer anywhere for any purpose, provided there is compliance with the department’s regulations regarding transfer of deer.) Therefore, any adverse economic impacts to deer breeders as a result of CZ designations could be temporary. The estimated costs of performing tests necessary to reach TC 1 status are as set out in the proposal for the comprehensive CWD management rules (41 TexReg 2853).

         No other small or microbusinesses or persons required to comply would incur any immediate direct adverse economic impacts.

         The department notes that because CWD has been proven to be transmissible by direct contact (including through fences) and via environmental contamination, there may be adverse economic impacts unrelated to the proposed rules in the event that CWD is confirmed near a breeding facility due to the possible reluctance of potential customers to purchase deer from a facility in an area where CWD has been confirmed. Additionally, if CWD is detected within a breeding facility, there could be lost revenue to the permittee since potential purchasers who are aware of the potential of CWD would likely refrain from purchasing deer from such a facility. Thus, the proposed rules, by providing a mechanism to minimize the spread of CWD, could also protect the economic interests of the regulated community.

         The department considered several alternatives to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply. The department considered proposing no rules. This alternative was rejected because a regulation that clearly sets out the restrictions on the regulated community is necessary to stem the spread of CWD. The department concluded that the need to protect the wildlife resources that sustain the state’s multi-billion-dollar hunting industry outweighs the temporary adverse impacts to small and micro-businesses and persons required to comply.

         The department also considered CZs and SZs that are more narrowly drawn. This alternative was rejected because the size of a CZ or SZ is biologically determined by using the best science and data available, correlated to the susceptible species. If the department chose to implement smaller CZs and SZs, it would increase the risk of spreading CWD and introduce regulatory confusion.

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

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule. 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.