Action
Comprehensive Chronic Wasting Disease (CWD) Management Rules
Triple T Provisions
Recommended Adoption of Proposed Changes
May 26, 2022

I.      Executive Summary:  The Texas Parks and Wildlife Department (TPWD) staff seeks adoption of a proposed amendment to the Comprehensive Chronic Wasting Disease (CWD) Management Rules regarding movement of deer via Trap, Transport, and Transplant (Triple T) permits. The proposed amendment lifts the current moratorium on the issuance of Triple T permits and establishes testing requirements and other provisions regarding prospective trap sites for Triple T activities involving deer. The proposed amendment would: 

• create a definition for testing year;
• require 60 “not detected” post-mortem CWD test results from prospective Triple T trap sites that have never received breeder deer, which may be obtained in one testing year or multiple consecutive testing years, with a minimum of 15 samples per testing year;
• require 60 “not detected” post-mortem CWD test results from prospective Triple T trap sites that have received breeder deer, which may be obtained in one testing year or multiple consecutive testing years with a minimum of 15 samples per testing year, beginning no earlier than five years from the date of the last breeder deer release;
• require ante-mortem testing of all deer trapped on a Triple T trap site at time of capture and prior to release;
• require a post-mortem test at a substitution rate of 1:1 for any ante-mortem test result of insufficient follicles;
• require continuous annual post-trap testing at all trap sites at an intensity of 15 post-mortem results of “not detected” per testing year to maintain eligibility as a trap site;
• require compliance with initial eligibility standards for failure to conduct annual testing;

• prohibit trap site authorization for any property that is or has been subject to a hold order or quarantine;
• create special provisions for trap site authorization for properties within five miles of the perimeter of a trace-out breeding facility designated not movement qualified;
• create special provisions for trap site authorization for properties within 10 miles of the perimeter of a release site subject to a hold order or quarantine;
• implement special provisions for Triple T activities involving the movement of deer to properties that are contiguous and under the same ownership;
• require visible tags on all released deer; 
• create provision allowing deer to be temporarily confined in an enclosure at the release site pending testing results; and
• Required all deer mortalities occurring during trapping or transport activities to be left at or returned to the trap site for disposal, or discarded in an approved landfill 

II.     Discussion:  Under Texas Parks and Wildlife Code chapter 43, subchapter E, TPWD may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for better wildlife management (popularly referred to as “Triple T” permits). At the November 4, 2021, Texas Parks and Wildlife Commission (Commission) meeting, the Commission adopted extensive revisions to the Comprehensive CWD Management Rules at 31 Texas Administrative Code chapter 65, subchapter B, in response to additional detections of CWD at multiple deer breeding facilities. A component of that rulemaking was a temporary moratorium on the issuance of Triple T permits for deer; however, the Commission directed staff to develop proposed disease-management provisions for rules governing the movement of deer under Triple T permits so as to allow the resumption of Triple T permit activities as soon as possible. The proposed rule (located at Exhibit A) would establish testing requirements and other provisions necessary to allow the resumption of Triple T permit issuance for deer while providing minimum acceptable assurance that CWD is not spread to additional properties, facilities, or populations as a result of Triple T activities.

At the Commission meeting on March 24, 2022, the staff was authorized to publish the proposed rule in the Texas Register for public comment.  The proposed rule appeared in the April 22, 2022, issue of the Texas Register (47 TexReg 2115).  A summary of public comment on the proposed rule will be presented at the time of the hearing.

III.   Recommendation:  The staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 Texas Administrative Code §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, with changes as necessary to the proposed text as published in the April 22, 2022, issue of the Texas Register (47 TexReg 2115).”

Commission Agenda Item No. 3
Exhibit A

COMPREHENSIVE CWD RULES

TRIPLE T PERMIT PROVISIONS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes amendments to 31 TAC §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit. The proposed rule would establish chronic wasting disease (CWD) testing requirements and other provisions for properties that are prospective trap sites for permits to trap, transport, and transplant game animals and game birds (colloquially known as “Triple T” permits). The department earlier this year promulgated rules that made extensive changes to the CWD management rules (46 TexReg 8724) contained in Chapter 65, Subchapter B (commonly referred to as the “comprehensive rules”). Among other things, that rulemaking imposed a temporary moratorium on the issuance of Triple T permits for deer; however, the Parks and Wildlife Commission directed staff to develop a proposal as quickly as possible to allow resumption of program functionality. The intent of this proposed rulemaking is to restore the availability of the Triple T permit program for deer while minimizing the probability of CWD being spread as a result of deer translocation activities.

        CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, red deer, sika, and others (susceptible species). CWD is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep) and bovine spongiform encephalopathy (BSE, found in cattle and commonly known as “Mad Cow Disease”), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. CWD is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination).

        White-tailed deer and mule deer are indigenous species authorized to be regulated by the department under the Parks and Wildlife Code. Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for wildlife management.

        The department, along with the Texas Animal Health Commission (TAHC), has been engaged in an ongoing battle against CWD in Texas since 2002. The recent detections of CWD in multiple deer breeding facilities created an unprecedented situation because it greatly increased the probability that CWD could have been spread to many new locations, including breeder deer release sites that subsequently could become trap sites for deer relocations under Triple T permits, which introduces even greater concerns regarding disease propagation.

        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 currently no scientific evidence to indicate that CWD is transmissible to humans; however, the Centers for Disease Control and Prevention and the World Health Organization strongly recommend testing animals from CWD Zones prior to consumption, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to cervids. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either captive or free-ranging cervid populations. The potential implications of CWD for Texas and its 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 engaged in frequent rulemaking over the years to address both the general threat posed by CWD and the repeated detection of CWD in deer breeding facilities. In 2005, the department adopted rules (30 TexReg 3595) that 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. In 2012, based on recommendations from the department’s CWD Task Force (an ad hoc group of deer management professionals, landowners, veterinarians, scientists, and deer breeders), the department adopted rules (37 TexReg 10231) to implement a CWD containment strategy in response to the detection of CWD in free-ranging mule deer located in the Hueco Mountains, the first detection of CWD in Texas. In 2015, the department discovered CWD in a deer breeding facility in Medina County and adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, followed by rules (41 TexReg 815) intended to function through the 2015-2016 hunting season. Working closely with TAHC and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department intensively utilized input from stakeholders and interested parties to develop and adopt comprehensive CWD management rules in 2016 (41 TexReg 5726), including provisions for live testing (“ante-mortem”) of deer for CWD. Since 2002, the department has made a continuous, concerted effort to involve the regulated community and stakeholders in the process of developing appropriate CWD response, management, and containment strategies, including input from the Breeder User Group (an ad hoc group of deer breeders), the CWD Task Force, the Private Lands Advisory Committee (an advisory group of private landowners from various ecological regions of the state), and the White-tailed Deer and Mule Deer Advisory Committees (advisory groups of landowners, hunters, wildlife managers, and other stakeholders).

        The Triple T permit is a deer management tool for land managers and landowners, allowing surplus deer to be moved to places where augmentation of deer populations is desired. The department has issued 149 Triple T permits at an average rate of 29.8 permits per year during the past five years. Some of these transplantations involve trapping at sites where breeder deer have been released or transferred in the past, as well as at places that have received deer via Triple T permit from other trap sites where breeder deer were transferred. As mentioned earlier in this preamble, the department engaged in rulemaking earlier this year in response to the recent detections of CWD in multiple deer breeding facilities, from which the department was forced to conclude that the rules in effect were not, as previously believed, adequate for providing assurances that CWD could be detected in breeding facilities before it could be spread to additional breeding facilities and free-ranging populations. Because breeder deer have been transferred to many properties that could become potential trap sites for Triple T activities, the department became concerned that Triple T activities could be or become a contributor to the spread of CWD.

        Under current rule (which, as noted, is temporarily suspended, but would be restored under the proposed amendment), the department will not issue a Triple T permit unless "not detected" post-mortem test results have been submitted for 15 test-eligible deer from the trap site. The department has determined that this standard provides insufficient confidence that CWD is not present or being spread by Triple T activities, particularly at places where breeder deer have been transferred in the past. Therefore, the proposed amendment, while retaining the current five-year time window concerning ineligibility for permit issuance as a result of breeder deer transfers for purposes of release, would provide for increased surveillance at properties where breeder deer have never been transferred and at properties where breeder deer were transferred at least five years prior to permit application.

        Unlike deer breeding facilities (where the population is captive and every deer is theoretically available for testing), in free-range settings such as Triple T release sites, not all deer are readily available or in fact easy to locate. As a result, the department concluded that post-mortem testing of a statistically significant number of deer, in conjunction with ante-mortem testing of all deer prior to transport, is the most viable and appropriate vehicle for establishing a reasonable confidence that CWD does not exist at the trap site. The proposed amendment would impose a basic testing regime by requiring, prior to authorization of any trapping activities under a Triple T permit, the post-mortem testing of at least 60 deer; ante-mortem sample collection of all trapped deer prior to transport (as well as post-mortem testing of all deer mortalities occurring as a result of permit activities); the tagging of all deer transferred under a Triple T permit; and continuous post-mortem testing on all trap sites at the rate of 15 deer per year in order to maintain trap site eligibility for Triple T permit activities. The proposed amendment would require continuous testing to ensure that long-term surveillance is conducted following establishment of trap site status (via submission of 60 “not detected” tests, as applicable, and the required ante-mortem testing) and would provide the department a reasonable degree of confidence that CWD is not present in that deer population, and thus, not likely to be transmitted to other locations and populations if the site is used as a trap site for Triple T activities. Therefore, the proposed amendment would impose a continuous testing regime and stipulate that any gap or lacunae in testing efforts would cause the testing requirements of the section to start over again in order to regain eligibility for trap site status. The 60-sample standard is the minimum sample size needed to attain 95 percent confidence that CWD is not present at a five percent prevalence for an infinite, homogenous population with random disease distribution. The proposed amendment also would remove current paragraphs (5) and (6) because the timelines established by those provisions would be irrelevant in light of testing frames contemplated by the proposed amendment.

        In developing the proposed rule, the department identified three risk categories presented by Triple T trap sites with respect to disease transmission. Of greatest concern are trap sites that are under a hold order or quarantine. A hold order prohibits the movement of a herd, animal, or animal product pending the determination of CWD status. A hold order is issued when a test result of “suspect” at a deer breeding facility (“index facility”) is received and applies to all locations that are epidemiologically connected to that facility, directly or indirectly (i.e., where breeder deer have been transferred directly from the suspect breeding facility, or, in some cases, via an intermediate breeding facility). A quarantine restricts animal or animal product movement from or onto a property as a result of verification of the existence of or exposure to CWD. This category of release site is of the greatest concern because deer at such sites have been exposed to a positive breeding facility, are potentially infected, and therefore are potentially able to spread the disease to additional locations and animals. The current rules prohibit trap-site authorization only for sites that are under a hold order at the time. The proposed amendment would prohibit trapping for Triple T purposes at sites that are subject to a hold order or quarantine and would provide that a property that has been subject to a hold order or quarantine is eligible to be a trap site beginning five years from the date that the hold order or quarantine is lifted. The proposed provision is necessary because evaluation of disease status and mitigation of disease transmission after breeder deer are transferred and released are inherently more problematic than evaluation of disease status and mitigation of disease transmission before breeder deer are moved from a breeding facility. The current rule was designed to temporarily halt deer movement from affected facilities and locations until testing efficacy could reach acceptable levels; however, given the recent detections of CWD at multiple facilities despite rules intended to prevent it, the department cannot be certain that CWD is not present at prospective trap sites where breeder deer from epidemiologically linked facilities have been transferred and released in the past.

        Of less, but still very significant concern, are prospective trap sites that have received a breeder deer. This category is of concern because of the continuing detection of CWD in deer breeding facilities. As stated earlier in this preamble and based on epidemiological investigation, it has become quite apparent that the CWD testing requirements in effect for breeding facilities prior to 2021 were inadequate for detecting CWD in a timely fashion. Although the recently adopted comprehensive rules definitively improve disease surveillance at breeding facilities, they do not address the disease-risk scenarios presented by deer transferred from breeding facilities under the previous rules. Consequently, the proposed amendment would require the submission of a minimum of 60 post-mortem test results of “not detected” for samples collected on prospective trap sites that have been the site of a breeder deer transfer for purposes of release and ante-mortem testing of each deer transported, provided at least five years have elapsed between the last release of breeder deer at the prospective trap site and the collection of any samples (post-mortem or ante-mortem). The department notes that CWD (especially at low prevalence) is not randomly distributed and that populations are not completely homogenous (because of barriers such as high fences, habitat type and quality, the presence of humans, and so on); however, site-specific testing at this intensity is expected to provide minimal assurance that movement from trap sites where breeder deer have been previously transferred and released (including breeder bucks temporarily possessed for breeding purposes under a Deer Management Permit) will not result in the spread of CWD to additional areas and populations. In sum, the testing and trapping requirements for these trap sites should provide minimal assurance that CWD is not spread via Triple T activities involving trap sites where breeder deer have been transferred and released in the past.

        The remaining risk category is represented by trap sites that have never received a breeder deer. Compared to the other two categories, these sites are the least likely to present a risk of CWD transmission because there is a demonstrably minimal epidemiological connectivity with deer breeding facilities (which, in Texas and nationally, have been shown to have the greatest capacity to amplify and spread CWD) and they are not located in CWD Containment or Surveillance Zones. The post-mortem testing prescribed by the proposed rules (60 deer prior to permit authorization, ante-mortem of each deer transported, and 15 deer per year afterwards), in concert with the lower risk of CWD introduction associated with sites that have never received breeder deer, are believed by the department to be adequate to address disease risk. The proposed amendment would allow the required 60 post-mortem tests to be conducted in a single year or over the course of consecutive years, provided a minimum of 15 test results per year are submitted and the samples are collected in consecutive years. The 60-sample standard is the minimum sample size needed to attain 95 percent confidence that CWD is not present at a five percent prevalence for an infinite, homogenous population with random disease distribution.

        To prevent possible confusion regarding the correspondence between the date a test sample is taken and the year to which the results are credited for purposes of determining regulatory compliance, the proposed amendment introduces the “testing year,” which is the time period between April 1 of one year and March 31 of the immediately following year. This is necessary because Triple T test samples must come from lawfully killed deer and deer seasons take place from September of one year through February of the next year.

        The proposed amendment would require all deer trapped under a Triple T permit to have ante-mortem samples collected prior to transport, which is intended to provide additional assurance that CWD is not transmitted to additional environments and populations. Because of the substantial connectedness of deer breeding facilities to other deer breeding facilities where CWD has been discovered, because breeder deer have been released in such large numbers across the state (where they can subsequently be trapped under a Triple T permit), and, because so few Triple T permits are issued annually, the department has determined that an ante-mortem testing component can be included in the proposed rule to provide additional confidence that CWD can be detected at the trap site. Because the trapping and transporting activities are extremely stressful to the deer, the department determined that it is not practical from an animal welfare perspective to require the deer to be held at the trap site pending test result notification, although the rule as proposed would allow for the temporary detention of deer at the release site pending notification of test results. The department reasons that the proposed requirement for a highly visible identification tag to be attached to each released deer will facilitate the ability to locate released deer in the event that CWD is discovered in a test sample from the trap site. Because all other instances in which department rules require or allow ante-mortem test results to be obtained prior to movement of deer, the proposed amendment would impose a seven-day time requirement for sample collection and submission, which is necessary to ensure that the required testing is conducted (since the rule as proposed would allow movement following sample collection but before test results are obtained). Additionally, it is not uncommon for test results to be returned with a finding of “insufficient follicles,” which means that the tissue sample cannot be used. Because the rule as proposed would allow deer to be released before test results are known and would prevent future permit issuance if the required test results of “not detected” are not submitted as provided by rule, it is possible that a scenario could arise in which a permittee is not in compliance and therefore not eligible for further permit issuance. The department reasons that the rules should therefore include some provision allowing for that possibility; therefore, the proposed amendment would allow for post-mortem testing of deer at the trap site to occur at a 1:1 ratio for each ante-mortem test returned with a finding of “insufficient follicles.” The proposed amendment also would require the post-mortem testing of all deer mortalities that occur during trapping and transporting activities. Because post-mortem tests provide the most reliable test results, they are the gold standard for providing confidence that CWD is not present in a population. It is not uncommon for deer to die during trapping and transporting activities, which the department reasons presents an excellent opportunity to provide additional high-value surveillance for CWD, particularly in a scenario in which deer are being relocated in a non-natural way. The proposed amendment also would stipulate that mortalities be disposed of at the trap site or by transport to a Type I landfill permitted by the Texas Commission on Environmental Quality, which is necessary to provide assurance that the disease-transmission threat of neural and lymphatic tissue is not exacerbated. CWD can be spread by incomplete or inadequate disposal techniques; accordingly, the department believes it is prudent to require that all mortalities be disposed of in a manner that prevents or mitigates disease transmission, such as disposal at the trap site or transfer to a Type I landfill.

        In the event that for whatever reason a trap site is not in compliance with the rule as proposed following trapping and transport of deer, the proposed rule would provide that no further Triple T activities will be authorized at that site until the department has developed and executed a custom testing plan to ensure that the population has been subjected to adequate surveillance. Finally, because the proposed rule would allow the movement of deer under the provision that tissue samples have been collected, the proposed amendment also would clearly call attention to the fact that transporting or releasing deer without having collected the samples required by the proposed rule would be a criminal offense, which is necessary to be abundantly clear.

        The proposed amendment would eliminate current subsection (a)(6) and (7), which is necessary because the proposed amendment establishes the “testing year” for purposes of verifying compliance with annual testing requirements over time.

        The proposed amendment also would reorganize existing provisions by moving the contents of current subsection (a)(3) into the list in subsection (a)(2) of situations in which the department will not authorize trapping for Triple T purposes.

        The proposed amendment also would prohibit the authorization of trapping activities at any site wholly or partially within a five-mile radius surrounding a property containing a breeding facility that the department has designated NMQ (non-movement qualified, or prohibited from transferring deer) under the provisions of §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, but would allow such sites to become eligible to be a trap site once the department has restored MQ status to the facility in question and the provisions of the section, as applicable, have been met. The five-mile radius was chosen after considering feedback received from various advisory groups along with deer movement data (the department notes that this value exceeds the standard imposed by department rules regarding CWD containment zones under Chapter 65, Subchapter B, Division 1). The proposed amendment also would allow for approval of trapping activities at such sites if the department conducts a trap site assessment that stipulates specific testing and management protocols the department deems necessary to assure that adequate disease surveillance exists and will be maintained at the trap site, and the permittee and the property owner of the trap site (if different persons) agree in writing to abide by the terms of the testing and management protocols prescribed by the department as a condition of trap site approval. The department considers that given the probable very low number of potential instances in which a prospective trap site could be within the radius established by the proposed amendment, it is feasible that a trap site assessment prescribing a testing and management protocol that could offer assurance that Triple T activities at the site would not result in unacceptable risk of disease transmission; therefore, the proposed amendment would provide for that possibility, provided the permittee and the owner of the trap site agree in writing to the terms and conditions of the testing and management protocol. The department has determined that any authorization of Triple T activities within an area of heightened disease concerns pursuant to special testing and management protocols should be in the context of a written agreement that specifically identifies the responsibilities and obligations of the permittee and the landowner as well as the consequences for failure to comply. Additionally, these epidemiologically linked facilities are high-fenced, which further reduces deer movements and distribution and the potential spread of CWD beyond these facilities. Similarly, the proposed amendment would prohibit the authorization of trapping activities at any site wholly or partially within a ten-mile radius surrounding a property containing a release site under a hold order or quarantine. The ten-mile radius was chosen after considering feedback received from various advisory groups along with deer movement data (the department notes that this value exceeds the standard imposed by department rules regarding CWD surveillance zones under Chapter 65, Subchapter B, Division 1). The department considers that given the probable very low number of potential instances in which a prospective trap site could be within the radius established by the proposed amendment, it is feasible that a trap site assessment prescribing a testing and management protocol that could offer assurance that Triple T activities at the site would not result in unacceptable risk of disease transmission; therefore, the proposed amendment would provide for that possibility, provided the permittee and the owner of the trap site agree in writing to the terms and conditions of the testing and management protocol. The department has determined that any authorization of Triple T activities within an area of heightened disease concerns pursuant to special testing and management protocols should be in the context of a written agreement that specifically identifies the responsibilities and obligations of the permittee and the landowner as well as the consequences for failure to comply.

        Similarly, the proposed amendment would allow for movement of deer under a Triple T permit at properties unable to meet the 60-test threshold for permit issuance, provided the trap site and the release site are adjacent, contiguous tracts owned by the same person, the department has conducted a trap site assessment that stipulates specific testing and management protocols the department deems necessary to assure that adequate disease surveillance exists and will be maintained at the trap site, and the permittee and the property owner of the trap site (if different persons) agree in writing to abide by the terms of the testing and management protocols prescribed by the department. Under current rule, testing is not required in such scenarios; however, the department has concluded, in light of recent detections of CWD, the deer population on any release site is for epidemiological purposes completely isolated from the trap site deer population, which represents a CWD transmission risk to additional tracts of land under the same ownership that otherwise may not have been exposed. Consequently, the CWD risk of the trap site must be assessed prior to the movement of any deer in order to gain confidence that CWD is not present.

        The proposed amendment would require all deer released via Triple T permits to be tagged, prior to release, with an external, durable plastic tag, approved by the department, that is brightly colored and clearly visible so as to allow the information on the tag to be read via binoculars or spotting scope at a distance of 100 yards. In the event that CWD is detected at a site that epidemiological investigations reveal is connected to a Triple T release, the department needs to be able to quickly identify the specific deer that were released in order to conduct post-mortem testing. By requiring conspicuous marking of Triple T deer, the department intends to facilitate that. 

        Finally, the proposed amendment would specifically provide that changes in property ownership or size do not affect the applicability of the section. The department wishes to be explicitly clear that subdividing a property or transferring ownership following the release of breeder deer will not alter the property’s eligibility or ineligibility for consideration as a trap site for Triple T activities, which is a necessary measure intended to prevent the spread of CWD.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for the first five years that the amendment as proposed is in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the rule as proposed.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be a minimally acceptable probability that CWD will be detected at Triple T trap sites if it exists at a relatively low prevalence and an attendant reduction in the probability of CWD being spread from properties where it might exist to additional populations, thus ensuring the public of continued enjoyment of the resource and the continued beneficial economic impacts of hunting in Texas.

        (B) There will be an adverse economic impact on persons required to comply with the rules as proposed. The impact will be the costs associated with the testing requirements imposed by the proposed amendment, which would consist primarily of the costs of required testing (60 post-mortem CWD tests prior to trapping authorization, 15 CWD post-mortem test every year thereafter (if the landowner desires to maintain eligibility), ante-mortem testing of all deer transported).

        The cost of a post-mortem CWD test administered by the Texas A&M Veterinary Medicine Diagnostic Lab (TVMDL) is a minimum of $45, to which is added a $7 accession 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 minimum fee for each post-mortem test would be $52, plus any veterinary cost (which the department cannot quantify, as the cost of veterinary services varies greatly from place to place), and the maximum fee for each post-mortem test would be $92. The department notes that it is possible for any person to be trained and certified at no cost to be a sample collector, which would reduce the cost of compliance accordingly.

        Under the Veterinary Practice Act, the samples necessary for ante-mortem testing can only be obtained by a licensed veterinarian. Because veterinary practice models vary significantly (flat rates, graduated rates, included travel costs, herd call rates, sedation costs, etc.) in addition to pricing structures determined by the presence or absence of professional competition in different parts of the state, the cost of ante-mortem testing is difficult to quantify; however, based on anecdotal information and an informal survey of knowledgeable veterinarians, the department estimates the cost of tonsillar or rectal biopsies at approximately $70-200 to as much as $350 per head. It is important to note that ante-mortem procedures for CWD testing are relatively new, but the number of veterinarians with the training and expertise to perform them reliably is increasing; nevertheless, the fee structure for such procedures can best be described as still evolving.

        Based on the available evidence, the department estimates the maximum cost to persons seeking a Triple T permit for deer would be at least $5,520 (60 post-mortem tests at a cost of $92 per test), plus the cost of ante-mortem testing at $350 dollars per deer transported. Additionally, if a person wishes to maintain eligibility for future Triple T permit issuance, 15 post-mortem tests per year would be required, which the department estimates at $1,380 per year.

        Additionally, the proposed rule would require deer mortalities to be disposed of at the trap site or transported to a Type I landfill. For deer that die during transport or at the release site, the cost of returning the deer to the trap site would consist of fuel and labor expenses that cannot be quantified because they are dependent on the distance between the release site and the trap site. The department has determined that fees for acceptance of dead deer at a Type I landfill vary widely across the state (as they are set independently by each landfill), but estimates the probable cost per animal to be $10 — $100; thus, for deer that die during transport of release and cannot be returned to the trap site for whatever reason, the cost of compliance would consist of the fuel and labor expense of transporting the carcass to a Type 1 landfill, plus the fee imposed by the landfill.

        The department notes that although the rule stipulates the testing requirements for issuance of Triple T permits, no person is required by any provision of law to obtain Triple T permits; that choice is purely voluntary.

        (C) 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. Those 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. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rule regulates various aspects of the issuance and use of permits that authorize the temporary possession of public wildlife resources and do not authorize the sale or purchase of live game animals and therefore do not directly regulate or affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (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 rule as proposed will not impact local economies.

        (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (F) 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.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; not create a new regulation, or limit an existing regulation, but will expand an existing regulation (by imposing additional testing requirements on all prospective Triple T permittees); neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Alan Cain at 830-480-4038, e-mail: alan.cain@tpwd.texas.gov. or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendment is proposed under Parks and Wildlife Code, Chapter 43, Subchapter E, which authorizes the commission to make regulations governing the trapping, transporting, and transplanting of game animals

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter E.

6. Rule Text.

        §65.97. Testing and Movement of Deer Pursuant to a Triple T or TTP Permit.

                 (a) General.

                         (1) [On the effective date of this paragraph the department will cease the issuance of Triple T permits for deer until further notice.]

                         [(2)] Except as provided by paragraph (2) of this subsection, the[The] department will not issue a Triple T permit authorizing deer to be trapped at a:

                                  (A) site where[release site that has received] breeder deer have been transferred within five years of the application for a Triple T permit;

                                  (B) [release] site that is not in compliance with[has failed to fulfill] the applicable testing requirements of this division;

                                  (C) [any] site where a deer has been confirmed positive for CWD;

                                  (D) [any] site where a deer has tested "suspect" for CWD; [or]

                                  (E) [any] site subject to[under] a hold order or quarantine;

                                  (F) site wholly or partially within a five-mile radius surrounding a property containing a deer breeding facility that the department has designated NMQ under the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD); provided however, that such a site is eligible to be a trap site once the department has restored MQ status to the deer breeding facility in question and the provisions of this section, as applicable, have been met;

                                  (G) site wholly or partially within a ten-mile radius surrounding a property containing a release site subject to a hold order or quarantine; or

                                  (H) site that the department determines, based on an epidemiological assessment, represents an unacceptable risk for the spread of CWD.

                         (2) The department may approve a prospective trap site described by paragraph (1)(F) or (G) of this subsection only if:

                                  (A) the department conducts a trap site assessment that stipulates specific testing and management protocols the department deems necessary to assure that adequate disease surveillance exists and will be maintained at the trap site; and

                                  (B) the permittee and the property owner of the trap site agree in writing to abide by the terms of the testing and management protocols prescribed by the department as a condition of trap site approval.

                         [(3) In addition to the reasons for denying a Triple T permit as provided in §65.107 of this title (relating to Permit Application and Processing) and §65.109 of this title (relating to Issuance of Permit), the department will not issue a Triple T permit if the department determines, based on epidemiological assessment and consultation with TAHC that to do so would create an unacceptable risk for the spread of CWD.]

                         (3)[(4)] In addition to the marking required by §65.102 of this title (relating to Disease Detection Requirements), all[All] deer released under the provisions of this section must be tagged prior to transport[release] in one ear with:

                                  (A) a durable plastic tag that is:

                                          (i) externally applied (affixed so as to be suspended from the ear and not placed within or so as to be obscured by the ear);

                                          (ii) a bright color that distinctly contrasts with the pelage of the deer to which it is attached, as well as any surrounding foliage or background color; and

                                          (iii) clearly visible in such a fashion as to allow the tag to be easily seen and the information on the tag to be read at a distance of at least 100 yards by binoculars, spotting scope, or other magnifying device; and

                                  (B) a button-type RFID tag approved by the department[, in addition to the marking required by §65.102 of this title (relating to Disease Detection Requirements)].

                                  (C) The tag required by subparagraph (A) of this paragraph must:

                                          (i) be sequentially numbered or otherwise serve to uniquely identify the deer to which it is affixed (i.e., no tag at any trap site shall duplicate a color/number combination of any other tag at that trap site in any permit year); and

                                          (ii) any other information that the department determines, based on the circumstances of the permit, is necessary.[the RFID TAG information must be submitted to the department].

                         (4)[(5)] Nothing in this section authorizes the take of deer except as authorized by applicable laws and regulations, including but not limited to laws and regulations regarding seasons, bag limits, and means and methods as provided in Subchapter A of this chapter (relating to Statewide Hunting Proclamation).

                         [(6) Except for a permit issued for the removal of urban deer, a test result is not valid unless the sample was collected and tested after the Saturday closest to September 30 of the year for which activities of the permit are authorized.]

                         [(7) For permits issued for the removal of urban deer, test samples may be collected between April 1 and the time of application.]

                         (5) The provisions of this section apply irrespective of changes in property size or ownership.

                         (6) A property that has been subject to a hold order or quarantine is eligible to be a trap site for Triple T activities under the provisions of this section, as applicable, beginning five years from the date that the hold order or quarantine is lifted.

                         (7) Deer may be temporarily confined in an enclosure at a release site pending notification of the results of the tests required by this section; however, such deer must be released immediately following notification of test results for all deer so detained, provided none of the test results are “Positive” or “Suspect.”

                         (8) All deer mortalities that occur in the process of trapping or transport activities must:

                                  (A) be post-mortem tested as prescribed by the applicable provisions of §65.92 of this title; and

                                          (i) left at or returned to the trap site for disposal; or                                                                           (ii) transported to a Type I landfill in Texas permitted by the Texas Commission on Environmental Quality (TCEQ).

                 (b) Testing Requirements for Triple T Permit. In this subsection, the term “testing year” is the period of time from April 1 of one year to March 31 of the immediately following year.

                         (1) The provisions of this paragraph apply on any property identified as a prospective trap site in an application for a Triple T permit if department records indicate deer that were ever in a deer breeding facility have ever been transferred to that property for any reason. The department will not authorize trapping activities under this paragraph until:

                                  (A) at least five years have elapsed since the last release of breeder deer on the property; and

                                          (i) the applicant has submitted at least 60 post-mortem “Not Detected” test results obtained from deer killed at the prospective trap site.

                                          (ii) The total number of test results required by this subparagraph may be from samples collected during the testing year in which the permit application is filed.

                                  (B) If the test results required by this paragraph are collected over multiple testing years prior to permit application:

                                          (i) a minimum of 15 post-mortem “Not Detected” test results from the prospective trap site must be submitted for each testing year; and

                                          (ii) the period of testing years for which test results are submitted must be continuous (i.e., if the samples are collected in each of four years, each of three years, or each of two years, those years must be consecutive years).

                                  (C) Test results from samples collected earlier than five years from the last date breeder deer were transferred to the prospective trap site are not valid for the purposes of this section.

                                  (D) Following any trapping activities authorized under a Triple T permit, a minimum of 15 post-mortem “Not Detected” test results must be submitted by March 31 of each testing year for a property to remain eligible as a trap site for future Triple T permit activities.

                                  (E) The department will not authorize trapping activities at any property where the continuous testing history required by this subparagraph has not been achieved and maintained.

                                  (F) Eligibility for consideration as a trap site may be re-established by providing a minimum of 60 post-mortem “Not Detected” test results from samples collected in consecutive testing years, provided:

                                          (i) a minimum of 15 post-mortem “Not Detected” test results are submitted per testing year; and

                                          (ii) no breeder deer have been transferred to the prospective trap site within five years of the first year for which test results are submitted.

                         (2) The provisions of this paragraph apply to a property identified as a prospective trap site in an application for a Triple T permit if department records indicate that breeder deer have never been transferred to that property for any reason. The department will not authorize trapping activities until the applicant has submitted at least 60 post-mortem “Not Detected” test results obtained from deer killed at the prospective trap site in accordance with the provisions of this paragraph.

                                  (A) The total number of test results required by this subparagraph may be from samples collected in the testing year of the permit application, samples collected the testing year prior to permit application, or from samples collected in more than one testing year prior to permit application; however, if the samples are obtained over multiple testing years prior to the year of permit application:

                                          (i) a minimum of 15 post-mortem “Not Detected” test results from the prospective trap site must be submitted for each testing year; and

                                          (ii) the period of testing years for which test results are submitted must be continuous (i.e., if the samples are collected in each of four years, each of three years, each of two years, the year prior, or the year of permit application, those years must be consecutive years).

                                  (B) For a property to remain eligible as a trap site for future Triple T permit activities, a minimum of 15 post-mortem “Not Detected” test results from deer at the property must be submitted by March 31 of each testing year.

                                  (C) The department will not authorize trapping activities at any property where the continuous annual testing history required by this paragraph has not been achieved and maintained following the issuance of a Triple T permit.

                                  (D) Eligibility for consideration as a trap site may be re-established by providing a minimum of 60 post-mortem “Not Detected” test results from samples collected:

                                          (i) in the testing year of or the testing year immediately preceding permit application; or

                                          (ii) in multiple testing years immediately preceding permit application, provided a minimum of 15 post-mortem “Not Detected” test results are submitted per testing year.

                         (3) In the instance that an applicant is unable for whatever reason to supply the 60 test samples for permit issuance required by paragraphs (1) or (2) of this subsection, the department may approve the movement of deer under a Triple T permit, provided:

                                  (A) the trap site and the release site are owned by the same person;

                                  (B) the trap site and the release site are on adjacent, contiguous tracts; and

                                  (C) the permittee and the property owner of the trap site (if different persons) have agreed in writing to abide by the terms of testing and management protocols prescribed by the department following a trap site assessment performed by the department that stipulates specific testing and management protocols the department deems necessary to assure that adequate disease surveillance exists and will be maintained at the trap site.

                         (4) In addition to the testing requirements prescribed elsewhere in this section, all deer trapped under the provisions of a Triple T permit must be subjected to ante-mortem testing as provided by this paragraph and the applicable provisions of §65.92 of this title (relating to CWD Testing).

                                  (A) An ante-mortem test sample under this section:

                                          (i) may be collected from a deer of any age;

                                          (ii) must be collected after trapping and prior to transport; and

                                          (iii) is not valid unless it is submitted within seven days of collection.

                                  (B) Deer may be transported immediately following the collection of the test samples required by this paragraph.

                                  (C) In the event that a test result of “insufficient follicles” is returned for a sample submitted to comply with the requirements of this paragraph, the department will not issue additional Triple T permits for the associated trap site until sufficient post-mortem tests on deer at the trap site have been submitted at a 1:1 ratio. The provisions of this subparagraph are in addition to any other testing requirements imposed by this section.

                                  (D) Failure to submit a test sample or meet a testing requirement under this paragraph will result in the associated trap site being ineligible to be a trap site for Triple T permit activities until testing has been conducted in compliance with a custom testing plan developed by the department.

                                  (E) It is an offense to transport or release a deer under the provisions of this section unless the tissue sample required by this section has been collected.

                         [(1)The department will not issue a Triple T permit unless "not detected" post-mortem test results have been submitted for 15 test-eligible deer from the trap site.]

                         [(2) CWD testing is not required for deer trapped on any property if the deer are being moved to adjacent, contiguous tracts owned by the same person who owns the trap site property.]

                 (c) (No change.)

        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