Chronic Wasting Disease (CWD) Detection and Response Rules – Proposed Changes

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DISEASE DETECTION AND RESPONSE RULES

DEER BREEDER RULES

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §§65.81-65.85, new §65.81 and amendments to §§65.80, 65.88, 65.90, 65.92, 65.94, 65.95, and 65.99, concerning Disease Detection and Response, and amendments to §§65.602-65.605, 65.610, and 65.611, concerning Deer Breeders Permits. The proposed repeals, amendments, and new rule would eliminate the current zone-based disease response strategy for chronic wasting disease (CWD) detections in free-range and captive deer populations, implement a new risk-mitigation strategy based on confirmed cases of CWD in free-range populations of native and exotic species, and implement additional testing and fencing requirements for deer breeding facilities. The intent of the proposed rules is to reduce the probability of CWD being spread from locations and facilities where it does or might exist.

        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).

        The department and the Texas Animal Health Commission (TAHC) have been engaged in combatting CWD in Texas since 2002, including in response to repeated detections within deer breeding facilities. Since 2002, more than 150,000 “not detected” post-mortem CWD test results have been obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted approximately 76,000 “not detected” post-mortem test results in addition to 112,000 ante-mortem test results as well.

        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 and are not thoroughly understood. There is currently no scientific evidence to indicate that CWD is transmissible to humans; however, both the CDC and the World Health Organization strongly recommend avoiding consumption of meat from CWD-infected deer. What is known is that CWD is invariably fatal to cervids. Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population in the United States, and there is evidence that hunters tend to 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 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 managed.

        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 recordkeeping. 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). 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), resulting in a series of rulemakings necessitated by or in response to the continued detections of CWD in both free-range and captive populations.

        Until now, the department’s strategy for containing CWD on the landscape was to respond to CWD detections in both captive and free-ranging populations by designating CWD management zones by rule. Within those zones, the movement of live deer under department-issued permits was restricted, testing of all hunter-harvested deer was required, and special provisions governing the processing and movement of deer carcasses were placed in effect. Those rules are contained in Division 1 of Chapter 65, Subchapter B. One unforeseen consequence of that approach is that the constant stream of CWD discoveries in breeding facilities has resulted in continuous rulemaking because each time CWD is discovered, the commission must promulgate a zone by rule in response. Staff has been directed by the commission to replace the current zone-based system with some other method of mitigating the risk of the spread of CWD that does not involve the necessity of rulemaking every time CWD is discovered in a breeding facility or free-range populations.

        The rules contained in Division 2 of Chapter 65, Subchapter B, govern the department’s disease management protocols with respect to the detection of CWD within deer breeding facilities. Those rules can generally be described as functioning together to implement testing standards necessary to provide statistically representative sampling within deer breeding facilities for purposes of minimally effective surveillance for CWD. One of the most effective approaches to managing infectious diseases and arresting the spread of a disease is to segregate exposed populations (individuals or populations with unknown contact with an infectious agent) from unexposed populations. As a matter of epidemiological probability, when animals from a population at higher risk of harboring an infectious disease are introduced to a population of animals at a lower risk of harboring an infectious disease, the confidence that the receiving population will remain disease-free is reduced.

        Department records indicate that within the last five years, 29 deer breeding facilities where CWD has been confirmed transferred a total of 8,109 deer to 235 additional deer breeding facilities and 460 release sites located in a total of 139 counties in Texas.

        The current comprehensive rules address disease response with respect to directly (facilities where CWD has been detected) and indirectly connected facilities (facilities that receive deer that were in the same facility with a CWD-positive deer prior to being transferred to another facility), implementing requirements for disease testing and movement of breeder deer to and from indirectly connected facilities, and requiring ante-mortem testing of all age-eligible deer prior to transfer to another breeding facility or release site. Those rules are predicated on a “tracing” model that is a universally accepted epidemiological methodology for disease tracking and control. The department, TAHC, and the United States Department of Agriculture (USDA) utilize a five-year “trace window” to develop information to characterize the particulars concerning the potential spread of CWD. The five-year window is important because (based on the literature and the USDA cervid disease program standards) it encompasses the time period from possible exposure to CWD, through the incubation period, to the time at which the disease can be transmitted to another animal or the environment.

        The current rules also address disease transmission risk associated with the movement of deer carcasses by implementing statewide disposal requirements. These disposal requirements ensure that unused carcass parts are either left at the site of harvest, disposed of in a landfill, or buried under at least three feet of earth. Proper carcass disposal mitigates risk associated with environmental contamination and potential spread of infected carcass parts by scavengers, providing an effective management strategy.

        The proposed rules are necessary to protect the state’s white-tailed and mule deer populations, as well as the long-term viability of associated hunting, wildlife management, and deer breeding industries.  To minimize the severity of biological and economic impacts resulting from CWD, the proposed rules implement more rigorous protocols within deer breeding facilities located in a specified proximity to a free-range CWD detection than was previously required in CWD Containment Zones. The proposed rules would provide a pathway for any deer breeders within a specified proximity to a free-range CWD detection to continue to move and release breeder deer. The proposed rules continue the existing extensive cooperation between the department and TAHC and the continued involvement of various stakeholder groups and interested parties.

The proposed repeals would eliminate rules that establish CWD management zones and prescribe conditions for live animal movement under department-issued permits within those zones, special provisions for breeding facilities within zones, powers of the executive director, and check station requirements, none of which will be necessary if the proposed amendments and new section are adopted.

        The proposed amendment to §65.80, concerning Definitions, would remove the current definitions, which are either unnecessary or redundant, and allow the definitions of §65.90, concerning Definitions, to be applicable to the entirety of the subchapter.

        Proposed new §65.81, concerning Risk Mitigation Provisions, would implement a new approach for isolating, reducing, and if possible, preventing the spread of CWD from locations where it is confirmed to exist, without the need for rulemaking each time a detection occurs, and without utilizing check stations or mandatory testing of hunter-harvested deer. The new approach is based on additional safeguards with respect to the movement of live deer under department-issued permits in proximity to locations where CWD is detected in free-range deer.

        Proposed new subsection (a) would provide for the applicability of the proposed new rule to the human-assisted movement of live deer under department-issued permits within five linear miles of a location where CWD has been detected in a free-range white-tailed deer or susceptible species or within 25 miles of a location where CWD has been detected in a free-range mule deer (hereinafter, “proximity to a free-range positive,” “proximity values”), provide for resolution of conflict with other regulatory provisions, and allow for the cessation of the rule’s applicability when the department has determined, using the best available science, that CWD is not likely present in such areas. The proposed new subsection is necessary to clearly articulate when and where the provisions of the new rule apply, and under what conditions the applicability of the rules cease. The five-mile and 25-mile values were selected because they represent the average natural dispersal ranges for free-range buck white-tailed and mule deer, respectively. The five-mile proximity factor is also applied to susceptible species as a general index of movement and takes into consideration that such animals are not indigenous.

        Proposed new subsection (b) would specifically address the movement of live deer under a deer breeder’s permit in proximity to a free-range positive. Proposed new subsection (b)(1) would specify that the department will notify the holder of a deer breeder’s permit in the event that the permittee’s facility has become subject to the applicability of the rule, which is necessary to establish the point in time the department will use to calculate compliance with  various time-based provisions of the rules.

        Proposed new subsection (b)(2) would provide that a deer breeder in proximity to a free-range positive could, provided the facility is designated movement qualified (MQ) by the department (authorized by the department to transfer deer), continue to transfer deer, but only to other breeders or release sites that are also within proximity to the free-range positive. The department’s primary concern is to prevent the spread of CWD from where it is known to exist by limiting the movement of live deer via department-issued permits from such areas to new areas beyond the natural dispersal range of deer, which is the case under rules currently in effect.

        Proposed new subsection (b)(3) and (4) would provide for the conditions under which the department would allow the transfer of breeder deer from a breeding facility in proximity to a free-range positive to locations beyond the proximity distances. The department has determined that if a breeding facility in proximity to a free-range positive is “double fenced,” all eligible-age deer within the facility are ante-mortem tested (with results of “not detected”), and one year has passed following the whole-herd test, the risk of spreading CWD is probably low. A “double fence” is believed to be an effective (but not absolute) barrier to CWD transmission because it prevents physical contact between free-range animals (both native deer and susceptible species) and breeder deer. In order to gain some assurance that CWD has not been passed from free-range animals to deer within a facility, a whole-herd ante-mortem test functions as an efficacious screening tool in conjunction with current rules requiring individual breeder deer to be ante-mortem tested prior to transfer; thus, the combination of physical barrier, whole-herd testing, sufficient time, and individual testing prior to transfer is believed to present an acceptable assurance that the likelihood of CWD being present (yet undetected) is low, especially when combined with mandatory retention of visible identification on all breeder deer at release sites, which will greatly assist in the recovery and testing of exposed animals should CWD be detected in the originating facility.

        Proposed new paragraph (4) would acknowledge the epidemiological value to breeding facilities prospectively affected by the new rules of the efficacy of surveillance achieved during the effectiveness of the current rules being proposed for repeal in this rulemaking. Under those rules, all hunter-harvested deer in CWD management zones were subject to mandatory or voluntary CWD testing. In order to accommodate the situations in which a breeding facility was prohibited under the CWD management zone rules from transferring deer to any location authorized to receive breeder deer, the proposed new rule would allow such facilities to transfer deer to any location in the state authorized to receive deer, provided the facility meets the new fencing requirements in the proposed amendment to §65.905, concerning Facility Requirements and Care of Deer, and is otherwise authorized to transfer deer (i.e., not a breeding facility where CWD has been confirmed or a breeding facility epidemiologically linked to a breeding facility where CWD has been confirmed or otherwise not in compliance with rules regarding movement qualification).

        Proposed new subsection (b)(5) would provide for situations in which a new permit is sought for a facility at a location that is already within proximity values from a free-range positive. As discussed previously in this preamble, the proximity values of the rules are predicated on the natural range of indigenous species of deer and reflect the premise that where CWD is known to exist the likelihood of its detection, if it is spreading, can be expected to be higher at closer distances to the free-range positive (“index case” or “index positive”); therefore, the proposed new paragraph would implement a number of measures intended to minimize the elevated risk of spreading CWD via the movement of breeder deer from facilities in proximity to an index case. First, the proposed new paragraph would require a prospective permittee to conduct an environmental assessment (using department-approved methodologies) of possible exposure of the site to CWD prions, which is necessary to provide assurance that a site is not already infected (in which case the department will not authorize the facility to receive deer; it is axiomatic that places where CWD is known to exist should not be the location of deer breeding activities that could cause the transmission of CWD to additional animals). The proposed provision would also stipulate that if the site was ever previously the site of a deer breeder facility, the environmental assessment would be required for the entirety of that site. Second, the proposed new paragraph would require, for an initial period of three years following the first introduction of deer to a new facility, that all deer introduced into or born in the facility remain in the facility for a minimum of 20 months (i.e., “residency,”), which is necessary to provide another layer of assurance that CWD is not present. The 20-month value represents the minimum length of time, post-exposure to CWD prions (if present), that CWD could be expected to have progressed to the point of being detectable using current testing methodologies. Proposed new paragraph (6) would provide that during the three-year period required by proposed new paragraph (5), the department would authorize the transfer of deer meeting the 20-month residency requirement to any breeding facility authorized to receive deer, but with respect to release sites, only to release sites that are also in proximity to the free-range positive. The transfer of deer to other breeding facilities does not represent as high a comparative risk for epidemiological assessment as the transfer of deer to release sites, because deer within breeding facilities are available for testing. On the other hand, deer transferred to release sites become free-range animals; therefore, the department believes it is prudent to restrict the transfer of deer for purposes of release to only those areas that are also within proximity to the index case. The proposed new provision also would allow the department to waive the 20-month residency requirement after the initial three-year period if the department determines there is reason to believe CWD prions are not present in the facility.

        Proposed new subsection (b)(7) would provide that the department will issue a new breeder permit to any qualified individual, but will not authorize the possession of breeder deer at any location where a susceptible species has tested positive for CWD or where CWD prions are determined to exist. The department does not believe it is prudent to allow deer to be introduced to a location where CWD is already known to be present.

Proposed new subsection (b)(8) would prohibit the recapture of deer that escape from a deer breeding facility located in proximity to a free-range positive except as authorized by the department or in a herd plan. A deer that escapes from a facility in proximity to a free-range positive could become exposed to CWD; therefore, the return of an escaped deer to a deer breeding facility could introduce CWD to that facility, which is undesirable. Therefore, the proposed new provision would prohibit return of escaped breeder deer to breeding facilities in proximity to a free-range positive while making exceptions for situations in which the department believes recapture is necessary and the risk is low or non-existent, or it is otherwise allowed under a herd plan.

        Proposed new subsection (b)(9) would address the expansion of an existing deer breeding facility in proximity to an index positive by requiring the site to be subject to the assessment and residency measures required by paragraphs (5) and (6) and treating the expanded facility as a new facility. The enlargement of a facility in an area where CWD has been discovered means that environmental contamination could have occurred and CWD could now be present within the perimeter of the enlarged facility. Therefore, the proposed amendment would prescribe the same requirements to assess and screen for the presence of prions that are prescribed by rule for new facilities.

Proposed new subsection (c) would provide for the authorization of activities pursuant to a Deer Management Permit (DMP) at a property in proximity to a free-range positive. A DMP authorizes the capture and temporary captivity of free-range deer for natural breeding purposes (which may include exposure to breeder deer introduced to the temporary breeding enclosure) within a high-fence property, after which the deer must be released to the wild. The department reasons that CWD prevalence (if CWD exists) in the population of deer on that property could be exacerbated because deer are concentrated in a DMP pen; therefore, the proposed new subsection would require DMP recipients to test either 100 percent of hunter-harvested deer or 15 hunter-harvested deer (whichever is lower) during the hunting season for which the DMP was issued, which would give the department some idea of disease status on the property. The proposed new provision also would require permittees to maintain a daily harvest log, provide it upon request of any department employee acting within the scope of official duties, submit it to the department electronically by the April 1 following the hunting season for which it was issued, and retain it for a period of one year. The harvest log is a useful tool for the department in the event that an epidemiological investigation becomes necessary. The proposed new subsection would condition the further issuance of DMPs on compliance with the test requirements of the proposed new subsection and specify methodology for permittees to attain compliance in the event that a permittee is unable to provide a sufficient number of test results for the year of permit issuance. Finally, the proposed new subsection would provide that the department will not issue a DMP for any property where CWD has been confirmed or that is epidemiologically linked to a positive facility. It is axiomatic that places where CWD is known to exist or that have received deer from a breeding facility where CWD exists should not be used as locations for deer-breeding activities that could cause the transmission of CWD to additional animals.

        The proposed amendment to §65.88, concerning Deer Carcass Movement Restrictions, would standardize carcass movement restrictions to eliminate separate requirements for susceptible species harvested outside of Texas and clarify existing rules governing disposal of carcasses. The proposed amendment would eliminate current subsection (a), modify current subsection (b) to accommodate applicability to susceptible species harvested outside of Texas, add new subsection (b) to expressly prohibit rendering as an acceptable method of disposal, and alter current subsection (c) to allow for the deboning of carcasses at a location other than the property of harvest. The proposed amendment also would clarify that persons opting to inter unused carcass parts are expected to immediately cover those parts as provided in the current rule, and that in the time period, if any, between the processing of a carcass and eventual disposal, the unused carcass parts must be protected from being scattered, consumed, or removed. The proposed amendment is intended to remove ambiguity regarding the timeliness of compliance with the current rule and clarify what is and what is not an acceptable method of carcass disposal. Similar changes are made to subsection (d). The proposed amendment would eliminate current subsections (e) and (f) because they would no longer be necessary if other elements of this proposed rulemaking are adopted.

        The proposed amendment to §65.90, concerning Definitions, would add definitions for “CWD-positive,” “free-range deer,” “location of detection,” “not available/unavailable for testing,” “positive breeding facility,” “susceptible species,” and “whole-herd test.”  All white-tailed and mule deer in this state are the property of the people of this state; however, various provisions of Parks and Wildlife Code authorize the temporary or (conditionally) permanent possession of white-tailed and mule deer under certain permits. The provisions of this subchapter distinguish between deer held in captivity under a deer breeding permit from all other deer and it is helpful to have a useful term to refer to all deer other than deer held in captivity; therefore, the proposed amendment would define “free-range deer” as “a deer that is not a breeder deer.” Similarly, the provisions of the subchapter are frequently conditioned on the confirmed presence or assumed absence of CWD in various scenarios; therefore, “CWD-positive,” would be defined as “an animal that has received a “detected" or “positive” CWD test result confirmed by the National Veterinary Services Laboratory,” and  “positive breeding facility” would be defined as “a deer breeding facility where CWD has been confirmed to exist.” “Not available/unavailable for testing would be defined as “for a Category B trace-out deer breeding facility, a deer that is no longer present in a facility and cannot be found or the whereabouts of which are otherwise unknown.” The provisions of the rules as proposed create different compliance scenarios affecting facilities that have been epidemiologically linked to a positive facility. Those scenarios depend on the presence or absence of deer that could have been exposed (and thus infected) to CWD and the availability of those deer for testing. In some cases, a deer might already have been released and cannot be found, or perhaps died without being tested; therefore, a definition of the term is necessary to clearly indicate when the provisions of various elements of the rulemaking are to be employed. The proposed amendment would define “susceptible species” as “any cervid species or part of a cervid species that is susceptible to CWD,” which is necessary because white-tailed and mule deer can contract CWD from certain species of exotic livestock and non-native wildlife; thus, the proposed rules must account for the discovery of CWD in animals in general, not just in native wildlife. “Whole-herd test” would be defined as “the administration of an ante-mortem test to the entirety of test-eligible deer in the inventory of a breeding facility,” which is necessary to create a useful shorthand reference. In proposed new §65.81, concerning CWD Risk Mitigation Provisions, the applicability of that section to breeding facilities is predicated on the distance any given deer breeding facility is from a location where CWD has been confirmed in a free-range white-tailed, mule deer, or other susceptible species. The department intends for that standard to be as close as possible to the actual distance between the deer breeding facility and the exact spot where the deer was killed, but acknowledges that this will not always be possible; therefore, the proposed amendment would define “location of detection” as “the exact location, to the extent that it can be determined, at which a deer confirmed to be positive for CWD died.” Finally, the proposed amendment would also alter the definition of “liberated deer” to remove redundancy and include the presence of other identifiers that could testify to the fact that a deer was at one time a breeder deer.

        The proposed amendment to §65.92, concerning CWD Testing, would alter internal references to conform with changes being proposed elsewhere in the rulemaking that would allow retropharyngeal lymph nodes (RLN) by themselves to be sufficient for testing purposes with respect to DMP activities in proximity to a free-range positive. RLNs have greater sensitivity than the obex for detecting CWD in deer; further, because DMP activities are unidirectional (the deer remain on the property and cannot be moved) and much reduced in potential for epidemiological complexity, the epidemiological information gained by submission of both tissues is of less importance; thus, a single type of tissue can be used for testing, as opposed to the lymph node/obex pair required for testing in deer breeding facilities, where epidemiological complexity can be significant.

        The proposed amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, would alter an internal citation to reflect changes made to the title of §65.605, concerning Facility Standards and Care of Deer, elsewhere in this rulemaking.

        The proposed amendment to §65.95, concerning Movement of Breeder Deer, would require the owner of a prospective release site for breeder deer to provide independent verification that the entirety of the release site is surrounded by a fence meeting the requirements of current subsection (c)(3). There have been instances in which unscrupulous persons have been untruthful with respect to the fence requirements or the actual location of a release site. Although it is a violation of current rule and Parks and Wildlife Code to fail to have and maintain a lawful fence, the sheer number of release sites makes it impossible for the department to verify that every release site is in compliance with the rules; therefore, because the department firmly believes it is imperative that released breeder deer be to some reasonable extent segregated from other free-range populations because of the threat of CWD, it is prudent to require an independent confirmation that the required fencing exists as a condition of authorizing such releases.

        The proposed amendment also would prohibit the release of breeder deer that are not permanently marked in accordance with the requirements of Parks and Wildlife Code, §43.3561, which stipulates that not later than March 31 of the year following the year in which a breeder deer is born, the breeder deer must be identified by placing a tag in one ear. Section 43.3561 also requires deer breeders to immediately replace an identification tag that has been dislodged, damaged, or removed by means other than human agency and allows the removal of a tag only for the purpose of immediately replacing the tag with a tag that meets the requirements of Parks and Wildlife Code, §43.3561. Faithfulness to the statute, especially in light of the proposed amendments, will increase the ability of the department and landowners to quickly identify and remove specific deer from release sites for testing in the event a release site becomes epidemiologically linked to a deer breeding facility where CWD has been confirmed, greatly assisting in disease management and response.

        The proposed amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities, would eliminate references to provisions in Division 1 of this subchapter that would no longer be necessary if other proposed provisions of this rulemaking are adopted. The proposed amendment also corrects an inaccurate internal reference in subsection (e)(3).

        The proposed amendment also would add new subsection (f) to provide additional avenues to MQ status for breeding facilities that have been designated NMQ because they are epidemiologically linked to a positive facility (index facility) under subsection (e) of the current rules (i.e., Category B Trace-out Facilities). The proposed amendment would provide two alternatives to the current five-year trace window, both based on the elapsed time since any given facility has been epidemiologically connected to the index facility. The first addresses the riskiest facilities, those in which deer implicated in an epidemiological investigation were received by the facility 36 months or less following detection of CWD in the index facility. Proposed new subsection (f)(1) would provide that for such facilities, MQ status could be restored, provided the facility is fenced in accordance with the proposed amendment to §65.605, concerning Facility Standards and Care of Deer; all trace deer available for testing (whether in the facility or in another facility as a result of transfer) are tested as required under current rule; a minimum of 25 percent of the total number of test-eligible deer in the facility are tested (ante-mortem or post-mortem, with “not detected” results) in each of the two reporting years following notification of Category B status; all trace deer that cannot be located for testing were in the facility for at least 20 months before being ante-mortem tested (with “not detected” results); and the facility has been in compliance for the previous two reporting years with all provisions of statute and rule that govern the possession of breeder deer. The proposed provision utilizes a combination of enhanced physical barriers, elevated testing effort, and residency requirements, in the context of continuous regulatory compliance, to provide a realistic, though minimal, assurance that if CWD has been introduced to a Category B facility, it will a) not be spread via physical contact through a single fence from animals in the facility to animals outside the facility, and b) be detected in the facility before deer are transferred elsewhere. The department notes that although the proposed measures provide a few scientifically defensible protections, they do not provide absolute or even high confidence that CWD will not be spread from facilities where they are employed.

        The second pathway addresses facilities in which deer implicated in an epidemiological investigation were received by the facility more than 36 months following detection of CWD in the index facility. Empirical evidence suggests that the incubation period of CWD is typically around 24 months, depending on the individual animal, and becomes easier to detect, if present, from that point on. Thus, for facilities in which trace deer were received at a point in time earlier than 36 months from the date a facility becomes a Category B facility, there is a correspondingly increased assurance that if it is present it will be detected, provided a double fence segregates breeder deer from other susceptible species, all trace deer available for testing are post-mortem tested, all trace deer unavailable for testing were ante-mortem tested (with results of “not detected”) at least once in the 60 months from the time CWD was detected in the positive facility (or at any time after the detection occurred), and the facility is in compliance with all statutory or regulatory provisions applicable to the possession of breeder deer. Having noted that the provisions as proposed are approaching minimally acceptable standards with respect to disease detection and management, the department strongly encourages the regulated community to recognize the value of due diligence with respect to the provenance of deer acquired from other breeders and the magnitude of potential disease transmission, which will greatly aid the department in disease management efforts as well as precluding the imposition of measures that absolutely can be avoided with greater caution. Furthermore, the department seeks to emphasize the importance of regulatory compliance by the regulated community, as circumvention of rules frustrates the effectiveness of efforts to mitigate disease transmission and poses avoidable risks to other members of the regulated community, landowners, and hunters. Finally, the proposed new provision would stipulate that compliance with the rules as proposed would not relieve a permittee of any obligations otherwise imposed by a herd plan, which is necessary to make clear that terms and conditions of herd plans, because they are jointly administered and enforced by the department and TAHC, are independent from and in addition to the regulatory requirements of the subchapter.

        The proposed amendment would alter current subsection (h) to implement additional measures to facilitate and expedite the department’s epidemiological investigations in the event that CWD is confirmed in a breeding facility. The proposed amendment would require a permittee, within 14 days of being notified of a suspect detection, to conduct and provide to the department a pen-by-pen inventory (to include the pen where the positive deer was at the time of the detection), immediately cease the internal movement of deer between pens in the facility unless otherwise authorized by the department, euthanize all trace deer within seven days (unless authorized by the department or in a herd plan), and either enter into a herd plan or agree to depopulate the facility. The prompt isolation of deer, cessation of deer movement, removal of trace deer, and initiation of mitigation actions greatly aids department efforts to contain and slow the spread of CWD. Finally, the proposed amendment would make conforming changes to internal cross-references.

        The proposed amendment to §65.602, concerning Permit Requirement and Permit Privileges; General Provisions, would add a reference to Subchapter B of the chapter to subsection (b)(4) and eliminate the time-based provision in subsection (d). The proposed amendment to subsection (b) is necessary because another element of this rulemaking would affect attempts to recapture escaped breeder deer and the two provisions should be harmonized to prevent confusion. The proposed alteration to subsection (d) is necessary because the provision is no longer applicable or necessary. The proposed amendment would eliminate current subsection (e) and relocate its contents to §65.605, concerning Facility Standards and Care of Deer, so that all provisions regarding fencing and infrastructure are in a single location.         The proposed amendment to §65.603, concerning Application and Permit Issuance, would require applicants for a new deer breeder’s permit to provide evidence that required fencing exists and has been inspected as stipulated by §65.605, concerning Facility Standards and Care of Deer (for reasons addressed earlier in this preamble in the discussion of proposed new §65.81) and clarify that a facility/fence inspector cannot be an employee of the department or the permittee, which is intended to prevent conflicts of interest. The proposed amendment also would update an internal reference to definitions.

        The proposed amendment to §65.604, concerning Disease Monitoring, would alter the reference to Subchapter B of Chapter 65 to remove a reference to Division 2, which is no longer necessary in light of proposed amendments contained in this rulemaking.

        The proposed amendment to §65.605, concerning Holding Facility Standards and Care of Deer, would retitle the section, implement additional fencing requirements, prescribe internal infrastructure requirements, and prohibit the sharing (except for specific temporary instances) of any space within a breeding facility with any animals other than the breeder deer permitted to be in the facility.

        Elsewhere in this rulemaking the department proposes rules to prescribe standards to mitigate the risk of the spread of CWD from locations where it has been confirmed in free-range populations of susceptible species. One component of those risk-mitigation measures is the requirement for affected deer breeding facilities to erect additional fencing (i.e., “double fence”) as necessary to ensure that deer within the facility (with one exception for temporary movement within a facility) are at all times behind at least two fences capable of retaining deer. For ease of reference, this is referred to as “double fence” or “double fencing.” The department believes it is prudent to require all new deer breeding facilities to comply with those fencing standards moving forward, which will provide additional protections with respect to disease transmission and the benefit of enhancing the ability of new facilities to seamlessly maintain movement status in the event that CWD is confirmed in proximity to the facility at some point in the future. The proposed amendment would stipulate that the external, perimeter fence component at no point be within five feet of an internal component of the double fence, or within ten feet of the perimeter fence component of another deer breeding facility, both of which are necessary to prevent nose-to-nose or direct contact between deer in one facility and deer in another facility or free-ranging susceptible species.

The proposed amendment to 65.605 also would add new subsection (c) to make explicit that under the rules as proposed, a deer breeding facility would consist of the entirety of the area within the perimeter fence required under proposed new subsection (b).

        The proposed amendment to §65.605 also would add new subsections (d) and (e) to ensure that breeder deer are at all times (with exceptions) contained inside the “double fence” and stipulate that in the interstitial spaces between the perimeter fence of the facility and the fencing of the pens within the facility, no supplemental food or water is permitted and no animals (including breeder deer) are allowed to be present, except what is necessary to facilitate movement of breeder deer between pens within the facility. As noted earlier in this preamble, CWD can be transmitted environmentally (contaminated soil, vegetation, feed, excreta) as well as through direct animal-to-animal contact. The department considers that it is therefore important for the spaces between internal fencing components (e.g. facility pens) and the perimeter fence to function as a buffer to prevent direct animal contact. The proposed amendment contains an exception for the temporary use of such spaces as needed to move or drive deer between fenced components within the facility, provided they are not allowed to linger or to have unsupervised access to such spaces.

        The proposed amendment to §65.605 also would create new subsections (f) — (h) to clarify the use of infrastructure within the perimeter fence of a deer breeding facility with respect to animals other than the breeder deer within the facility. The department has become aware that in some cases breeder deer from more than one permitted facility have been allowed shared access to handling barns and working pens, which should not be allowed because it presents an unacceptable risk of CWD being transmitted between breeding facilities via environmental or direct contact. Therefore, the proposed amendment relocates the requirements of current §65.602(e), and explicitly prohibits the shared use of infrastructure by breeder deer within the facility and any other susceptible species, other than the temporary use of such infrastructure for handling and working livestock and non-susceptible species. The amendment as proposed also would clarify that facility infrastructure such as buildings, sheds, etc. need not be completely within and separate from the perimeter fence required by the proposed rule, so long as the external walls of various infrastructure function as a de facto component of the double fencing required by the proposed rules. The proposed amendment to §65.605 also would add proposed new subsection (j) to clarify that no current permittee would be required to erect a perimeter fence but all permittees would be required to comply with the other provisions of the proposed amendment.  Finally, the proposed amendment would add new subsection (i) to require all deer breeding facilities on a single property to be separated by at least 10 feet. In this way, there is no shared fencing that would allow direct animal-to-animal contact.

        The proposed amendment to §65.610, concerning Transfer of Deer, would acknowledge the offense of violating Parks and Wildlife Code, §43.3561, for reasons explained earlier in this rulemaking with respect to the proposed amendment to §65.95.

        The proposed amendment to §65.611, concerning Prohibited Acts, would make changes as necessary to conform the applicability of the section to the rules as proposed.

2. Fiscal Note.

        Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no negative fiscal implications to state or local governments as a result of administering or enforcing the rules, as the rules will be administered and enforced using existing personnel as part of their current duties under existing budgets. There may be positive fiscal implications to the department if the costs of CWD testing on hunter-harvested deer drop significantly as a consequence of the elimination of mandatory testing in CWD management zones required under previous rules; however, because that value cannot be predicted, it cannot be quantified.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the minimally acceptable probability that CWD will not be spread from locations and facilities where it might exist, which is necessary to assure the public of continued enjoyment of the resource and 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) There will be an adverse economic impact on persons required to comply with the rules as proposed, in the form of costs associated with CWD testing at properties conducting activities under a DMP. Those testing costs are the same as the adverse economic impacts to small and microbusinesses and rural communities, which are addressed later in this preamble.

        (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, micro-businesses, and rural communities. 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 rules will result in increased costs to deer breeders in the form of additional required testing, additional facility requirements, and potential loss of sales. Therefore, the department has prepared the economic impact statement and regulatory flexibility analysis described in Government Code, Chapter 2006.

        Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to “engage in the business of breeding breeder deer in the immediate locality for which the permit was issued” and to “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation.” As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer. The same is not true of other permits issued by the department, which authorize only the temporary detention and release of deer and do not authorize the purchase or sale of deer.

        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.

        Department data indicate that there are 650 permitted deer breeders in Texas as of the preparation of this analysis. Although the department does not require deer breeders to file or report financial information with the department, the department believes that most if not all deer breeders 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 could have an adverse impact on deer breeders.

        The variety of business models utilized by deer breeders makes meaningful estimates of potential adverse economic impacts difficult. As noted, the department does not require deer breeders to report the buying or selling prices of deer; however, publicly available and anecdotal information indicates that sale prices, especially for buck deer, may be significant, ranging from hundreds of dollars to thousands of dollars.

        It should also be noted that some aspects of this analysis are based on marketplace behavior that cannot be accurately predicted. In addition, to the extent that any marketplace analysis can be conducted, it is difficult, if not impossible, to accurately separate and distinguish marketplace behavior that is the result of the rules from marketplace behavior that is the result of the discovery of CWD. For reasons unrelated to the proposed rules, it is possible, perhaps even likely, that breeders and release site owners will be reluctant to purchase a breeder deer from a facility with a close relationship or a perceived relationship to a facility near or at which CWD has been detected. As noted earlier in this analysis, the department, for a variety of reasons, views the proposed rules as the minimally acceptable standard necessary to have a meaningful chance at preventing CWD from being spread from locations where it is known to exist; beyond that standard, confidence regarding the health of deer in any given deer breeding facility is a matter of trust between buyer and seller.

        The department notes that at the current time there would be two permitted deer breeders who could be adversely impacted if the proposed rules were in effect today, based on department data. All potential adverse economic impacts to permitted deer breeders as a result of the proposed rules would be dependent on the discovery of CWD in free-range populations within the specified proximities to deer breeding facilities; therefore, if CWD is not detected within the specified proximities, the rules would have no effect on any permitted deer breeder except as noted.

        One of the two deer breeders who would be immediately affected by the proposed rules releases deer only to an adjacent release site that is also within five miles of a free-range detection. If that deer breeder desired to transfer deer beyond the five-mile distance from the nearby positive location, that breeder would be required to meet the fencing and testing requirements of the proposed rules.

        The other deer breeder who would be immediately affected by the proposed rules already meets the requirements of the proposed rules and would be permitted to transfer deer to any facility in the state authorized to accept deer.

        There will be no adverse economic impacts for deer breeders whose facilities are located within five linear miles of a location where CWD has been confirmed in free-range white-tailed deer or susceptible species, or within 25 linear miles of a location where CWD has been confirmed in a free-range mule deer, are designated MQ, and who transfer deer only to release sites and breeding facilities that are within the specified proximity to the free-range positive.

        The proposed rules, if CWD is confirmed within the proximal distances to any deer breeder, would require affected permittees who desire to transfer breeder deer anywhere in the state to construct additional fencing to ensure that breeder deer are behind two fences at all times. Because the physical layout and internal design of breeding facilities varies greatly, it is difficult to account for all the possibilities; thus, for the purposes of this analysis, the department estimates the maximum cost of compliance with fencing requirements to be approximately $88,000, which was derived by multiplying the current highest estimated cost per linear mile for fencing meeting the requirements of the rules ($55,000, in mountainous or rugged terrain, variable by region) multiplied by the perimeter footage of a square-shaped 103-acre facility (the largest deer breeding facility in the state, according to department records, is 103 acres and the department for the purposes of this analysis used an equilateral model to calculate the linear length of the perimeter, which could vary by facility), which is approximately 1.6 miles The average size of a deer breeding facility property is 14 acres and the median size is nine acres. Based again on an equilateral model, the maximum estimated cost to fence a 14-acre facility would be $32,538, and the maximum estimated cost for a nine-acre facility would be $26,089. Department records indicate that at the current time, there are two breeding facilities that would have to erect additional fencing in order to be able to transfer deer to any deer breeder or release site in the state if the rules as proposed are adopted. Similarly, the proposed rules would require all new deer breeding facilities to be surrounded by a perimeter fence and this analysis would also apply to those facilities.

        The proposed rules also would require the owners of prospective release sites to have a qualified person perform a fence inspection and attest to the site’s compliance with the rules. The department estimates that this cost would be a minimum of $1,000 and possibly greater, depending on the size of the release site, location, terrain, and other factors contributing to the amount of time necessary to conduct the inspection.

        The proposed rules would require affected permittees who desire to transfer breeder deer anywhere in the state to conduct additional ante-mortem testing. The adverse economic impact of the proposed rules would consist of testing costs for a whole-herd ante-mortem test. Department records indicate that of the two facilities that would be immediately affected if the rules are adopted, only one would have to conduct testing in order to transfer anywhere in the state and that breeder’s inventory as of this analysis is 65 deer. Therefore, the estimated adverse economic impact on that permittee would be approximately $114,800 (assuming an average cost of $350 per deer subjected to testing, as described below). The department cannot of course predict how many additional deer breeders could be affected in the event of additional confirmations of CWD in free-range deer or susceptible species; however, department records indicate that the largest current inventory in any deer breeding facility authorized to transfer deer is 639 deer; thus, the adverse impact to that permittee (if CWD was confirmed within the specified proximity) would be approximately $223,650. The department notes, for purposes of scaling, that eight percent of the breeding facilities in the state contain 200 or more deer, 17 percent contain between 100 and 199 deer, 24 percent contain between 50 and 100 deer, 34 percent contain between 10 and 49 deer, 17 percent contain fewer than 10 deer, and that 168 of the facilities are not authorized to transfer deer under rules currently in effect and unrelated to the rules as proposed. Of the 650 permitted deer breeders in Texas, 482 are currently designated MQ and 168 are designated NMQ under existing rules.

        Additionally, affected permittees would not be able to transfer deer for a period of one year following the administration of the whole-herd test; therefore, affected permittees would experience prospective sales losses associated with that one-year period. As noted, permittees are not required to file or report financials to the department; thus, the loss of sales to any given permittee is unknown but could be many thousands of dollars. In any case, there are no permittees at the current time who would be affected.

        The proposed rules would require permittees at trace-in breeding facilities and positive facilities to euthanize and test trace deer. The adverse economic impact to affected breeders would consist of the cost of euthanizing a deer ($0 — $500), the cost of a post-mortem test ($70 per deer), and the possible loss of sales value (variable and unquantifiable). In the overwhelming majority of cases, this would involve fewer than five deer.

        The proposed rules would require permittees who decline to accept a herd plan for a positive facility to depopulate the facility. The cost of a depopulation event is highly variable because of the number of factors, but in general consists of the cost of euthanizing the deer in the facility, post-mortem testing of those deer, and disposal. Based on department-conducted depopulation events the department estimates that depopulation costs would be between $500 and $700 per animal. Based on department records, that would result in a cost of $447,300 at the facility with the largest number of deer at the current time. The department notes that permittees would only be required to conduct depopulation activities if they refuse to enter into a department herd plan; thus, depopulation is not mandatory. If the department depopulates a deer breeding facility pursuant to Parks and Wildlife Code, §43.953, the department is required to waive the associated costs pursuant to Parks and Wildlife Code, §43.955, if the department determines the permit holder did not cause the introduction of CWD into the facility or delay the detection of CWD at the facility through the violation of statutory or regulatory requirements related to deer breeding.

        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 economic 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 unpredictably fluid.

        The cost of a CWD test administered by the Texas A&M Veterinary Medicine Diagnostic Lab (TVMDL) on a sample collected and submitted by a deer breeder is a minimum of $25, 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 fee for submitting an obex or obex/medial retropharyngeal lymph node pair for ELISA (enzyme linked immunoassay) testing would be $32, plus any veterinary cost (which the department cannot quantify), and the fee for submitting an entire head for testing would be $72.

        There could be an economic impact from the loss of the deer and any revenue that might have been realized from the sale of the deer to another breeder or to a release site for liberation. As noted previously, the department does not require that breeders report financial data. The economic impact on a deer breeder would depend on whether the deer breeder euthanizes deer to achieve testing requirements, and the number and type of deer euthanized. As noted above, the lost revenue from the euthanized deer could range from a few hundred dollars or less per deer to thousands of dollars per deer.

        The proposed rules would prohibit the recapture of escaped breeder deer from facilities within five linear miles of a location where CWD has been confirmed in a free-range white-tailed deer or susceptible species or within 25 linear miles of a location where CWD has been confirmed in a free-range mule deer. The possible adverse economic impacts would consist of the loss to the deer breeder of the sales value of the escaped deer, which could range from hundreds of dollars to thousands of dollars.

        The proposed rules would require applicants seeking a deer breeder permit for or who enlarge an existing facility at a location within five linear miles of a location where CWD has been detected in a free-range white-tailed deer or susceptible species, or within 25 miles of a location where CWD has been detected in a free-range mule deer, to conduct an environmental assessment, using department-approved methodology, of the exposure of the site to CWD prions. An environmental assessment typically consists of laboratory analysis of soil, plant, animal, fungi, and water samples taken at random distribution on a given site to determine if CWD prions are present. Because of the high variability of terrain, vegetation, wildlife densities, and water resources in Texas, the variety of appropriate testing methodologies available, and the size of the property in question, sampling strategies could vary widely; however, the department estimates the cost of the required assessment could range from $100 per acre to $500 per acre or more.

        Several alternatives were considered to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

        One alternative was to do nothing and maintain status quo. This alternative was rejected because the commission has directed the elimination of the current rules that establish CWD management zones and prescribe requirements for conduct within those zones.

        One alternative considered was to repeal the existing CWD management zone rules and not replace them. This alternative was rejected because the presence of CWD in breeding facilities and free-ranging populations presents an actual, direct threat to free-ranging and captive cervid populations and the economies that depend upon them and the department has a statutory duty to protect and conserve the wildlife resources of the state.

        Another alternative considered was to impose less stringent testing requirements. This alternative was rejected because the testing requirements in the proposed rules are the minimum level at which the department could have any confidence that CWD is not being spread from locations where it is known to exist as a result of live animal movement. Less stringent testing requirements also could result in the spread of CWD to additional breeding facilities, which would then be designated NMQ and prohibited from transferring deer, which would, in turn, result in the total loss of sales opportunity. The department also believes that some sort of mitigation standard is necessary to provide some level of assurance to the hunting public, private landowners, and the regulated community that wildlife resources available for the use and enjoyment of present and future generations are in a healthy condition.

        Another alternative considered was to implement an absolute prohibition on the movement of live deer within the state for any purpose. While this alternative would significantly reduce the potential spread of CWD, the department has a statutory obligation to issue deer breeder permits with all associated privileges to a qualified person. Therefore, this alternative was rejected because the department has a statutory obligation to allow such activities.

        The department has determined that there will be no effect on rural communities, since the economic contribution of an individual deer breeder is not a significant driver of economic activities at either the macro or micro level.

        (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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

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

        (F) 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:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (by creating provisions for risk mitigation in proximity to known CWD confirmations; and implementing additional testing requirements in positive facilities and facilities indirectly connected to facilities where CWD has been confirmed);

                 (6) not expand or limit an existing regulation limit;

                 (7) repeal regulations (by eliminating rules establish CWD management zones);

                 (8) neither increase nor decrease the number of individuals subject to regulation; and

                 (9) 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, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (830) 480-4038; email: alan.cain@tpwd.texas.gov or via the department website at https://tpwd.texas.gov/business/feedback/meetings

5. Statutory Authority.

        The amendments and new section are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter E, which authorizes the commission to make regulations governing the trapping, transporting, and transplanting of game animals, Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and  §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The proposed amendments and new section affect Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.

6. Rule Text.

        §65.80. Definitions. The words and terms used in this division shall have the meanings assigned by §65.90 of this title (relating to Definitions),[The following words and terms, when used in this subchapter, shall have the following meanings,] unless the context clearly indicates otherwise. All other words in this subchapter shall have the meanings assigned by Parks and Wildlife Code.

                 [(1) Containment Zone (CZ) — A department-defined geographic area in this state within which CWD has been detected or the department has determined, using the best available science and data, CWD detection is probable.]

                 [(2) Herd Plan — A set of requirements for disease testing and management developed by the department and TAHC for a specific facility.]

                 [(3) Surveillance Zone (SZ) — A department-defined geographic area in this state within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected.]

                 [(4) Susceptible species — Any species or part of a species of wildlife resource that is susceptible to CWD.]

        §65.81. Risk Mitigation Provisions.

                 (a) General.

                         (1) Except as provided in this section and §65.87 of this title (relating to Exception), no person shall conduct, authorize, or cause any activity involving the movement of a susceptible species under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1 within five linear miles of a location where CWD has been confirmed in a free-range white-tailed deer or susceptible species, or within 25 linear miles of a location where CWD has been confirmed in a free-range mule deer. Such prohibited activity includes but is not limited to transportation, introduction, removal, authorizing or allowing the transportation, introduction, or removal of, or causing the transportation, introduction, or removal of a live susceptible species.

                         (2) In the event of a conflict between this section and any other provision of this subchapter, this section prevails.

                         (3) Once implemented, the provisions of this division continue in effect at any given location until the department has determined, using the best available science, that CWD is not likely present within the applicable distance of a free-range positive.

                 (b) Breeder Deer.

                         (1) The provisions of this subsection apply to a breeding facility any part of which is within five linear miles of a location where CWD has been confirmed in a free-range white-tailed deer or susceptible species, or within 25 linear miles of a location where CWD has been confirmed in a free-range mule deer. The department will notify a permittee immediately upon determining that the permittee’s facility is subject to the provisions of this subsection.

                         (2) A breeding facility described by paragraph (1) of this subsection may, provided the facility is designated MQ:

                                  (A) receive deer from any breeding facility in this state authorized to transfer deer; and

                                  (B) transfer deer only to release sites or breeding facilities authorized to receive deer the entirety of which are completely within five linear miles of the location where CWD has been confirmed in white-tailed deer or susceptible species, or within 25 linear miles of a location where CWD has been confirmed in a mule deer.

                         (3) A breeding facility described by paragraph (1) of this subsection is prohibited from transferring deer except as provided under paragraph (2) of this subsection unless:

                                  (A) the applicable facility infrastructure and fencing standards described in §65.605 of this title (relating to Facility Standards and Care of Deer) have been in place for at least one year prior to being notified by the department as required by paragraph (1) of this subsection; and

                                  (B)  following the notification required by paragraph (1) of this subsection, a whole-herd ante-mortem test of all test-eligible deer in the facility is conducted with test results of “not detected” for every deer, except as provided in subparagraph (D) of this paragraph, after which deer may be transferred to and from the facility as provided in this subchapter; or

                                  (C) if the applicable facility infrastructure and fencing standards described in §65.605 of this title have not been implemented or have been in place for less than one year prior to being notified by the department as required by paragraph (1) of this subsection:

                                          (i) a whole-herd ante-mortem test of all test-eligible deer in the facility is conducted no earlier than one year following the completion of the applicable facility infrastructure and fencing standards described in §65.605 of this title with test results of “not detected” for every deer, except as provided in subparagraph (D) of this paragraph; and

                                          (ii) one year has elapsed from the date of the whole herd test required by clause (i) of this subparagraph has been completed, after which deer may be transferred to and from the facility as provided in this subchapter.

                                  (D) The department will not accept inconclusive ante-mortem test results (including, but not limited to "insufficient follicles") for more than 10 percent of the total number of deer tested under the provisions of subparagraph (B) or (C) of this paragraph.

                         (4) A breeding facility that as of the effective date of this subsection was subject to the restrictions provided by §65.81(2) of this title (relating to Containment Zones: Restrictions) in effect at that time may transfer deer to any breeding facility or release site authorized to receive deer if;

                                  (A) the facility meets the applicable facility infrastructure and fencing standards described in §65.605 of this title; and

                                  (B) the facility is designated MQ.

                         (5) The department will issue an initial permit for a facility located within five linear miles of a location where CWD has been detected in a free-range white-tailed deer or susceptible species, or within 25 miles of a location where CWD has been detected in a free-range mule deer; however:

                                  (A) authorization for possession of deer is contingent upon the completion, at the applicant’s expense, of an assessment, utilizing department-approved methodologies, of environmental exposure to CWD prions at the location of the prospective facility or, if the site was ever the location of a permitted facility, within the perimeter of the previously permitted facility; and

                                  (B) for a period of three years following the initial introduction of deer to the facility, each deer transferred into or born in the facility have been in the facility for a minimum residency period of 20 continuous months, after which the deer may be transferred to any facility authorized to receive deer as provided in this subchapter. After the three-year period established by this subparagraph has elapsed, the department may waive the 20-month residency requirement upon an epidemiological determination by the department that CWD prions are not present in the facility.

                         (6) A breeding facility described by paragraph (5) of this subsection may, provided the facility is designated MQ:

                                  (A) receive deer from any breeding facility in this state authorized to transfer deer; but

                                  (B) except as provided in paragraph (5)(B) of this subsection, may transfer deer only to release facilities that are:

                                          (i) authorized to receive deer; and

                                          (ii) completely within five linear miles of the location where CWD has been confirmed in white-tailed deer or susceptible species, or within 25 linear miles of a location where CWD has been confirmed in a mule deer.

                         (7) The department will issue a new breeder permit to any qualified individual, but will not authorize the possession of breeder deer at any location where a susceptible species has tested positive for CWD or where CWD prions are determined to exist.

                         (8) Deer that escape from a breeding facility any part of which is within five linear miles of a location where CWD has been detected in a free-range white-tailed deer or susceptible species, or within 25 linear miles of a location where CWD has been detected in a free-range mule deer, may not be recaptured and/or returned to a breeding facility except as expressly authorized in writing by the department or in a herd plan.

                         (9) The department may authorize the expansion of an existing facility located within five linear miles of a location where CWD has been detected in a free-range white-tailed deer or susceptible species, or within 25 miles of a location where CWD has been detected in a free-range mule deer; however, the requirements of paragraph (5) and (6) of this subsection apply to the entirety of the facility as enlarged and the entire facility will be treated as a new facility.

                 (c) Deer Management Permit (DMP).

                         (1) The department may authorize DMP activities on a property within five linear miles of a location where CWD has been detected in a free-range range white-tailed deer or susceptible species or within 25 linear miles of a location where CWD has been detected in a free-range mule deer, provided the owner of the property agrees, in writing, prior to the issuance of the DMP, to subject either 100 percent of hunter-harvested deer or 15 deer, whichever value is lower, to testing performed by an accredited testing laboratory on the medial retropharyngeal lymph nodes from each harvested deer, which must be collected by a qualified licensed veterinarian, TAHC-certified CWD sample collector, or other person approved by the department. Tissue samples shall be submitted to an accredited laboratory within two weeks of harvest.

                                  (A) The testing required by this paragraph shall be:

                                          (i) conducted on test-eligible deer taken on the property for which the DMP was issued, during the hunting season for which the DMP was issued (i.e., that coincides with the period of validity of the DMP); and

                                          (ii) at the expense of the permittee, including tissue collection and submission.

                                  (B) A permittee subject to the provisions of this paragraph shall maintain a harvest log during the period of validity of the permit. The harvest log shall be maintained daily and shall meet the requirements of this subparagraph. For each deer harvested on the DMP property, the landowner must, on the same day the deer is harvested, legibly enter the following information in the daily harvest log:

                                         (i) the name and hunting license of the person who harvested the deer;

                                         (ii) the date the deer was harvested;

                                         (iii) the species (white-tailed or mule deer) and type of deer harvested (buck or antlerless);

                                         (iv) any alphanumeric identifier tattooed on the deer;

                                         (v) the RFID tag number of any RFID tag affixed to the deer; and

                                         (vi) any other identifier and identifying number on the deer.

                                 (C) The daily harvest log shall be made available upon request to any department employee acting in the performance of official duties.

                                  (D) The daily harvest log shall be on a form provided or approved by the department and shall be retained for a period of one year following submission and acceptance by the department.

                         (2) The harvest log and test results required by this subsection shall be submitted to the department via an application specified by the department for that purpose by April 1 immediately following the close of the hunting season for which the DMP was issued.

                         (3) For a property on which zero deer were harvested in the hunting season for which a DMP was issued, a subsequent DMP shall not be issued until the permittee has submitted test results of “not detected” for 15 hunter-harvested deer from the property.

                         (4) For a property on which 15 or fewer deer were harvested in the hunting season for which a DMP was issued, a subsequent DMP shall not be issued until the permittee has submitted test results of “not detected” equal to the number of deer harvested from the property.

                         (5) For a property on which more than 15 deer were harvested in the hunting season for which a DMP was issued, a subsequent DMP shall not be issued until the permittee has submitted “not detected” test results for 15 hunter-harvested deer from the property.

                         (6) The department will not issue a DMP for:

                                  (A) a property where CWD is confirmed; or

                                  (B) a property that is a release facility epidemiologically connected to a positive facility.

        §65.88. Deer Carcass Movement Restrictions.

                 [(a) Except as provided in this section, no person may transport into this state or possess any part of a susceptible species from a state, Canadian province, or other place outside of Texas where CWD has been detected in free-ranging or captive herds except for:]

                         [(1) meat that has been cut up and packaged (boned or filleted);]

                         [(2) a carcass that has been reduced to quarters with no brain or spinal tissue present;]

                         [(3) a cleaned hide (skull and soft tissue must not be attached or present);]

                         [(4) a whole skull (or skull plate) with antlers attached, provided the skull plate has been completely cleaned of all internal soft tissue;]

                         [(5) finished taxidermy products;]

                         [(6) cleaned teeth; or]

                         [(7) tissue prepared and packaged for delivery to and use by a diagnostic or research laboratory.]

                 (a)[(b)] In addition to the provisions of §65.10 of this title (Possession of Wildlife Resources) and except as may be otherwise prohibited by this subchapter, a department herd plan, or a quarantine or hold order issued by TAHC, a white-tailed deer or mule deer or part of a white-tailed or mule deer killed in this state or a susceptible species or part of a susceptible species harvested outside of Texas may be transported from the location where the animal was killed as provided in this section. The[to a final destination. Following final processing at a final destination, the] parts of the animal not retained for cooking, storage or taxidermy purposes shall be disposed of as quickly as practicable by one of the following methods[only as follows]:

                         (1) (No change.)

                         (2) interment, to be accomplished by the placement of the carcass parts at a depth of no less than three feet below the natural surface of the ground, followed immediately by the placement of earthen material in such as fashion as to completely cover the carcass parts with at least three vertical feet of earthen material[and covered with at least three feet of earthen material]; or

                         (3) return[returned] to the property where the animal was harvested for disposal.  

                 (b) The rendering of carcass parts is not a lawful method of disposal.

                 (c) The carcass of a white-tailed or mule deer may be deboned at any location[,] prior to transportation to a final destination, [at the location where the animal was taken,] provided:

                         (1) (No change.

(2) proof-of-sex and any required tag is retained and accompanies each package, bag, or container of meat; and

                         (3) the remainder of the carcass is disposed of in accordance with the provisions of subsection (a) of this section. Carcasses and carcass parts not disposed of immediately shall be protected from being scattered, consumed, or removed until disposal occurs[remains at the location where the animal was harvested, except that a head may be transported to a taxidermist as provided in subsection (f) of this section].

                         (4) — (6) (No change.)                                                                                                                      (d) It is an offense for any person to dispose of those parts of an animal that the possessor does not retain for cooking, storage, or taxidermy purposes except as follows:

                         (1) (No change.

                         (2) interment, to be accomplished by the placement of the carcass parts at a depth of no less than three feet below the natural surface of the ground, followed immediately by the placement of earthen material in such as fashion as to completely cover the carcass parts with at least three vertical feet of earthen material [and covered with at least three feet of earthen material]; or

                         (3) return[returned] to the property where the animal was harvested.

                 [(e) If a person takes a susceptible species in a CZ or SZ within which the department has not designated a mandatory check station, the person shall transport the head of the susceptible species to the nearest check station established by the department for the CZ or SZ in which the susceptible species was taken, provided such transport occurs immediately upon leaving the CZ or SZ where the animal was taken and occurs via the most direct route available.]

                 [(f) The skinned or unskinned head of a susceptible species from a CZ or SZ, other state, Canadian province, or other place outside of Texas may be transported to a taxidermist for taxidermy purposes, provided all brain material, soft tissue, spinal column and any unused portions of the head are disposed of prior to being transported to Texas, or disposed of in a landfill in Texas permitted by TCEQ to receive such wastes.]

        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

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

        The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.

        §65.90. Definitions. The following words and terms shall have the following meanings, except in cases where the context clearly indicates otherwise.

                 (1) – (5) (No change.)

                 (6) CWD-positive – An animal that has received a “detected" or “positive” CWD test result confirmed by the National Veterinary Services Laboratory.

                 (7)[(6)] CWD-positive facility (positive facility) — Any facility in or on which CWD has been confirmed.

                 (8)[(7)] Deer breeder — A person who holds a deer breeder’s permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.

                 (9)[(8)] Deer breeding facility (breeding facility) — A facility authorized to hold breeder deer under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter (Deer Breeder’s Permit).

                 (10)[(9)] Department (department) — Texas Parks and Wildlife Department.

                 (11)[(10)] Deer Management Permit (DMP) — A permit issued under the provisions of Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP)) that authorizes the temporary detention of deer for the purpose of propagation.

                 (12)[(11)] Exposed deer — A deer that meets any of the following criteria:

                         (A) — (C) (No change.)

                 (13)[(12)] Exposure — The period of time that has elapsed following the introduction of an exposed deer to a breeding facility.

                 (14)[(13)] Facility — Any location required to be registered in TWIMS under a deer breeder’s permit, Triple T permit, TTP permit, or DMP, including release sites and/or trap sites.

                 (15) Free-range deer—A deer that is not a breeder deer.

                 (16)[(14)] Herd Plan — A set of requirements for disease testing and management developed by the department and TAHC for a specific facility.

                 (17)[(15)] Hunter-harvested deer — A deer required to be tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).

                 (18)[(16)] Hunting year — That period of time between September 1 and August 31 of any year when it is lawful to hunt deer under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).

                 (19)[(17)] Inconclusive — A test result that is neither "positive" nor "not detected" on the basis of clinical deficiency.

                 (20)[(18)] "Insufficient follicles" — A test result indicating that a tonsil or rectal biopsy sample contained an insufficient number of lymphoid follicles to produce a valid test result.

                 (21)[(19)] Landowner (owner) — Any person who has an ownership interest in a tract of land and includes landowner’s authorized agent.

                 (22)[(20)] Landowner’s authorized agent (agent) — A person designated by a landowner to act on the landowner’s behalf.

                 (23)[(21)] Last known exposure — The last date a deer in a trace-out or trace-in breeding facility was exposed to a trace deer prior to the death or transfer of that trace deer.

                 (24)[(22)] Liberated deer — A free-ranging deer that bears evidence of having been a breeder deer,[liberated] including, but not limited to, a tattoo (including partial or illegible tattooing), or evidence of having been eartagged at any time (holes, rips, notches, etc. in the ear tissue), electronic identification devices, or any other signs that the deer was at any time a breeder deer.

                 (25) Location of detection—The exact geographic location, to the extent that it can be determined, at which a deer or susceptible species confirmed to be positive for CWD died.                    (26)[(23)] Movement Qualified (MQ) — A designation made by the department pursuant to this division that allows a deer breeder to lawfully transfer breeder deer.

                 (27) Not available/unavailable for testing—For a Category B trace-out deer breeding facility, a deer that is no longer present in a facility and cannot be found or the whereabouts of which are otherwise unknown.

                 (28)[(24)] Not Movement Qualified (NMQ) — A designation made by the department pursuant to this division that prohibits the transfer of deer by a deer breeder.

                 (29) Positive breeding facility—A deer breeding facility where CWD has been confirmed to exist.

                 (30)[(25)] Post-mortem test — A CWD test performed on a dead deer.

                 (31)[(26)] Properly executed — A form or report required by this division on which all required information has been entered.

                 (32)[(27)] Reconciled herd — The breeder deer held in a breeding facility for which every birth, mortality, and transfer of breeder deer has been accurately reported as required by this division.

                 (33)[(28)] Release — The act of liberating a deer from captivity. For the purposes of this division the terms "release" and "liberate" are synonymous.

                 (34)[(29)] Release site — A specific tract of land to which deer are released, including the release of deer under the provisions of this chapter or Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, or R-1.

                 (35)[(30)] Reporting year — For a deer breeder’s permit, the period of time from April 1 of one calendar year through March 31 of the next calendar year.

                 (36)[(31)] RFID tag — A button-type ear tag conforming to the 840 standards of the United States Department of Agriculture’s Animal Identification Number system.

                 (37)[(32)] Submit — When used in the context of test results, provided to the department, either directly from a deer breeder or via an accredited testing laboratory.

                 (38) Susceptible species — Any cervid species or part of a cervid species that is susceptible to CWD.

                 (39)[(33)] Suspect — An initial CWD test result of "detected" that has not been confirmed.

                 (40)[(34)] TAHC — Texas Animal Health Commission.

                 (41)[(35)] Test-eligible —

                         (A) – (B) (No change.)

                 (42)[(36)] Test, Test Result(s), or Test Requirement — A CWD test, CWD test result, or CWD test requirement as provided in this division.

                 (43)[(37)] Trace deer — A deer that the department has determined had been in a CWD-positive deer breeding facility on or after the date the facility was first exposed to CWD, if known; otherwise, within the previous five years from the reported mortality date of the CWD-positive deer, or the date of the ante-mortem test result.

                 (44)[(38)] Trace-in breeding facility — A breeding facility that meets either of the following criteria:

                         (A) – (B) (No change.)

                 (45)[(39)] Trace-out breeding facility — A breeding facility that has received an exposed deer that was in a CWD-positive deer breeding facility.

                 (46)[(40)] Trap Site — A specific tract of land approved by the department for the trapping of deer under this chapter and Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.

                 (47)[(41)] Triple T permit — A permit to trap, transport, and transplant white-tailed or mule deer (Triple T permit) issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds).

                 (48)[(42)] Trap, Transport and Process (TTP) permit — A permit issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds), to trap, transport, and process surplus white-tailed deer (TTP permit).

                 (49)[(43)] TWIMS — The department’s Texas Wildlife Information Management Services (TWIMS) online application.

                 (50) Whole-herd test—The administration of an ante-mortem test to the entirety of test-eligible deer in the inventory of a breeding facility.

        §65.92. CWD Testing.

                 (a) (No change.)

                 (b) Except as provided in §65.95(c)(7)[§65.95(c)(6)] of this title (relating to Movement of Breeder Deer) or subsection (d) of this section, an ante-mortem CWD test is not valid unless it is performed by an accredited laboratory on retropharyngeal lymph node, rectal mucosa, or tonsillar tissue with at least six lymphoid follicles collected within eight months of submission by a licensed veterinarian authorized pursuant to statutes and regulations governing the practice of veterinary medicine in Texas and regulations of the TAHC from a live deer that:

                         (1) – (2) (No change.)

                 (c) Except as provided in §65.81(c)(1) of this title (relating to CWD Risk Mitigation Provisions, a[A] post-mortem CWD test is not valid unless it is performed by an accredited testing laboratory on the obex and medial retropharyngeal lymph node of a test-eligible mortality, and may be collected only by a qualified licensed veterinarian, TAHC-certified CWD sample collector, or other person approved by the department.

                 (d) – (l) (No change.)

        §65.94. Breeding Facility Minimum Movement Qualification.

                 (a) – (g) (No change.)

                 (h) Deer required to be reported to the department under §65.605 of this title (relating to [Holding] Facility Standards and Care of Deer) are considered to be mortalities for the purposes of this division until lawfully recaptured. A deer that is not recaptured will be treated as a mortality that occurred within the facility from which the escape is required to be reported.

(i) (No change.)

        §65.95. Movement of Breeder Deer.

                 (a) – (b) (No change.)

                 (c) Release Sites; Release of Breeder Deer.

                         (1) – (3) (No change.)

                         (4) The department will not authorize the liberation of breeder deer at a release site registered in TWIMS following the effective date of this subsection unless the owner of the release site submits to the department a letter of endorsement by a person authorized by the department to conduct fence inspections under the provisions of §65.603 of this title (relating to Application and Permit Issuance) stating that the person has personally conducted an on-site inspection at the facility identified in the application and affirming that the release site is surrounded by a perimeter fence meeting the requirements of paragraph (3) of this subsection. This paragraph does not apply to release sites that have received deer prior to the effective date of this paragraph. It is an offense for any person the department has authorized as a facility inspector to submit the letter of endorsement required by this paragraph if the person has not personally conducted an onsite inspection at the facility.

                         (5)[(4)] No person may intentionally cause or allow any live deer to leave or escape from a release site onto which breeder deer have been liberated.

                         (6)[(5)] The owner of a release site where deer from a facility subject to the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities) or deer from a CWD-positive facility have been released shall maintain a harvest log at the release site that complies with §65.93 of this title (relating to Harvest Log).

                         (7)[(6)] No person may transfer a breeder deer to a release facility or cause or allow a breeder deer to be transferred to a release facility unless:

                                  (A) (No change.)

                                  (B) the deer is at least six months of age at the time the test sample required by this paragraph is collected; and

                                  (C) the deer bears the identification prescribed by Parks and Wildlife Code, §43.3561, and any applicable herd plan.

                                  (D) A breeder deer that has been released is no longer a breeder deer; however, it is an offense for any person to remove the identification tag required by this section from such deer except as a consequence of reducing the deer to possession following lawful take under a hunting license.

                                  (E)[(C)] An ante-mortem test result of "not detected" submitted to satisfy the requirements of §65.92(d) of this title may be utilized a second time to satisfy the requirements of this paragraph, provided the test sample was collected as provided in subparagraph (A) of this paragraph.

                                  (F)[(D)] A facility from which deer are transferred in violation of this paragraph becomes automatically NMQ and any further transfers are prohibited until the permittee and the owner of the release site have complied with the testing requirements of the department, based on an epidemiological assessment as specified in writing.

                 (d) – (e) (No change.)

        §65.99. Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities.

                 (a) Effectiveness.

                         [(1)] To the extent that any provision of this section conflicts with any provision of this division, the provisions of this section prevail.

                         [(2) The provisions of Division 1 of this subchapter apply to any facility designated by the department as a Category A or Category B trace-out breeding facility, or trace-in breeding facility subject to the provisions of this section.]

                 (b) – (d) (No change.)

                 (e) Category B trace-out breeding facility.

                         (1) – (2) (No change.)

                         (3) In lieu of the testing requirements prescribed by paragraph (2)(A) and (2)(E) of this subsection, a permittee may request the development of a custom testing plan as provided in subsection (h) of this section; provided, however, the permittee must comply with paragraph (2)(B) — (D) of this subsection[section].

                         (4) — (6) (No change.)

                (f) The department shall, provided the provisions of this subchapter do not otherwise prevent restoration of MQ status, restore MQ status to a breeding facility that has been designated NMQ under the provisions of subsection (e) of this section as provided in this paragraph.

                         (1) MQ status may be restored for a facility in which all trace deer available for testing are tested in accordance with subsection (e) of this section and trace deer unavailable for testing were received by the trace facility less than 36 months prior to the date of detection in the positive breeding facility, provided:

                                 (A) the facility was fenced as specified in §65.605 of this title (relating to Facility Standards and Care of Deer) prior to notification of Category B status;

                                 (B) a minimum of 25 percent of the total number of test-eligible deer in the facility have been tested (ante-mortem or post-mortem) with test results of “not detected” during each of the two reporting years immediately preceding notification of Category B status;

                                  (C) all unavailable trace-out deer were in the facility for at least 20 months prior to being the subject of an ante-mortem test with results of “not detected”; and

                                  (D) beginning two reporting years prior to the designation as a trace facility, the facility has been in continuous compliance with all requirements of:

                                          (i) Parks and Wildlife Code, Chapter 43, Subchapter L;

                                          (ii) this subchapter; and

                                          (iii) Subchapter T of this chapter.

                                  (E) Compliance with the requirements of this subsection does not relieve any person of any obligation or requirement of a herd plan.

                         (2) MQ status may be restored for a facility in which:

                                  (A) all trace deer available for testing are tested in accordance with subsection (e) of this section; and

                                  (B) trace deer unavailable for testing:

                                          (i) were received by the trace facility not less than 36 months prior to the date of detection in the positive breeding facility; and

                                          (ii) have been the subject of an ante-mortem “not detected” test result within 60 months prior to the date of detection in the positive breeding facility and through the time period the trace deer is no longer available for testing; 

                                  (C) the facility has been fenced as specified in §65.605 of this title prior to the notification of Category B status; and

                                  (D) beginning two reporting years prior to the designation as a trace facility, the facility was in continuous compliance with all requirements of:

                                         (i) Parks and Wildlife Code, Chapter 43, Subchapter L;

                                          (ii) this subchapter; and

                                          (iii) Subchapter T of this chapter.

                                  (E) Compliance with the requirements of this subsection does not relieve any person of any obligation or requirement of a herd plan.

                 (g)[(f)] Trace-in breeding facility. Immediately upon notification by the department of trace-in facility status, a facility is automatically NMQ.

                         (1) – (6) (No change.)

                 (h)[(g)] Custom Testing Plan. Within seven days of being notified by the department that a breeding facility has been designated a Category A, Category B, or trace-in facility, a permittee may, in lieu of meeting the applicable testing requirements of subsections (d) – (g)[(d) — (f)] of this section, request the development of a custom testing plan by the department in consultation with TAHC based upon an epidemiological assessment conducted by the department and TAHC. A custom testing plan under this subsection is not valid unless it has been approved by the department and TAHC.

                         (1) – (5) (No change.)

(i)[(h)] Positive Facility.

                         (1) Upon notification by the department that CWD is suspected in a deer in a facility, the facility is automatically NMQ and the permittee shall:

                                  (A) within 14 days, conduct and submit to the department a pen-by-pen inventory of all deer within the breeding facility, including the location of the pen in which the suspected positive deer was kept at the time the suspect CWD detection occurred;

                                  (B) immediately cease all internal movement of animals between pens within the facility, unless such movement is expressly authorized in writing by the department;

                                  (C)[(1)] euthanize the positive deer within seven days of confirmation of the positive test result, if the detection was a result of antemortem testing;

                                  (D) euthanize all trace deer within seven days of confirmation of the positive test result, unless authorized by the department or in a herd plan;

                                  (E)[(2)] submit post-mortem test samples from breeder deer euthanized under this subsection within one business day of euthanasia, to include both ears and the identification tag required under Parks and Wildlife Code, Chapter 43, Subchapter L; and

                                  (F)[(3)] inspect the facility daily for mortalities; and

                                          (i)[(A)] immediately report each mortality to the department;

                                          (ii)[(B)] immediately collect test samples from all test-eligible mortalities that occur within the facility; and

                                          (iii)[(C)] submit samples collected under this subsection for post-mortem testing within one business day of the discovery of the mortality.

                         (2) Unless otherwise provided in writing by the department, a permittee must enter into a herd plan within six months of being designated a positive facility or agree to conduct a depopulation of the breeder deer within the facility.

                         (3) Fencing meeting the specifications in §65.605 of this title shall be installed around a positive facility no later than the completion of the herd plan and removal of a quarantine unless the owner of the facility conducts a complete depopulation of the breeder deer.

        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

        The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter.

        The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapter L.

        §65.602. Permit Requirement and Permit Privileges; General Provisions.

                 (a) (No change.)

                 (b) In accordance with Parks and Wildlife Code, §43.357, a person who possesses a valid deer breeder’s permit may:

                         (1) – (3) (No change.)

                         (4) except as provided by this subchapter or Subchapter B of this chapter, recapture lawfully possessed breeder deer that have been marked in accordance with Parks and Wildlife Code, §43.3561 that have escaped from a permitted facility.

                 (c) (No change.)

                 (d) A deer breeding facility shall contain either white-tailed deer or mule deer, as authorized by the permit. [The provisions of this subsection take effect April 1, 2021].

                 [(e) Except for deer that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, no deer, livestock, exotic livestock, or similar animals may be present in, confined in, or have access to a deer breeding facility other than the deer listed on the reconciled herd inventory for the facility reported to the department; however,  infrastructure such as chutes and pens, within a permanent structure identified on a facility diagram required under this subchapter may be used  to temporarily retain and handle animals other than white-tailed or mule deer held under provisions of a deer breeder permit, provided the animals are members of species that are not CWD-susceptible species The provisions of this subsection take effect April 1, 2021.]

        §65.603. Application and Permit Issuance.

                 (a) An applicant for an initial deer breeder’s permit shall submit the following to the department:

                         (1) (No change.)

                         (2) a letter of endorsement by a person authorized by the department to conduct facility and fence inspections stating that the person has personally conducted an on-site inspection at the facility identified in the application and affirming that the facility identified in the application:

                                  (A) (No change.)

                                  (B) is surrounded by a perimeter fence meeting the specifications of §65.605 of this title (relating to Facility Standards and Care of Deer);

                                  (C)[(B)] contains infrastructure appropriate for the humane treatment of deer, including for the provision of adequate food, a continuous supply of water, and ample cover or shelter;

                                  (D)[(C)] is adequate for the lawful conduct of activities governed by this subchapter;

                                  (E)[(D)] has been secured in such a fashion to prevent ingress to and egress from the facility by any deer, livestock, exotic livestock, or similar animals; and

                                  (F)[(E)] no deer, livestock, exotic livestock, or similar animals are present or confined within the facility;

                         (3) – (5) (No change.)

                 (b) For the purposes of this subchapter, an authorized facility/fence[facility] inspector is a person not employed by the department or the permittee in any other capacity who:

                         (1) – (2) (No change.)

                         (3) has not, according to department records, failed to maintain a reconciled herd, as defined by §65.90[§65.90(27)] of this title (relating to Definitions), within the five years immediately preceding any inspection conducted for purposes of satisfying the requirements of this subchapter; and

                         (4) (No change.)

                 (c) – (i) (No change.)

        §65.604. Disease Monitoring. The provisions of Subchapter B[, Division 2], of this chapter apply to the possession and movement of deer pursuant to a permit issued under this subchapter.

        §65.605. [Holding] Facility Standards and Care of Deer.

                 (a) Except as provided in subsection (h) of this section, the[The] entire perimeter [fence] of a permitted deer breeding facility [containing breeder deer], including medical facilities, shall be within a fence of no less than seven feet in height, which[and] shall be constructed of department-approved woven wire, field fence, net mesh, chain link or welded wire that will retain breeder deer. The fence required by this subsection shall at no point be within:

                         (1) five feet of a pen or other structure containing breeder deer; or

                         (2) ten feet of the exterior fence of another deer breeding facility.

                 (b) A permittee shall submit to the department a letter of confirmation by a person authorized by the department to conduct facility inspections under the provisions of §65.603 of this title (relating to Application and Permit Issuance), that the perimeter fence required by subsection (a) of this section exists and is compliant with the requirements of this section.

                 (c) A deer breeding facility consists of the entirety of the area within the fence required by subsection (a) of this section.

                 (d) Within the perimeter fence required by subsection (a) of this section, breeder deer shall at all times be kept completely contained within internal fencing meeting the requirements of subsection (a) of this section, except as provided by subsection (e)(2) of this section.                                                                                     

                 (e) Within the space or area between the fence required by subsection (a) of this section and the fencing required by subsection (d) of this section:

                         (1) no supplemental food or water is permitted; and

                         (2) no animals of any kind shall have free-choice access to or be present, except what is necessary for the limited, transient period of time necessary to drive or move breeder deer in an immediate fashion between pens or structures within the facility. If breeder deer are moved within a facility under the provisions of this subsection, a person must be present and actively engaged in urging or driving the breeder deer in a direct and prompt fashion to the destination pen. It is an offense for breeder deer to be present in the space or area between the two fences of the double fence required by this section if a person is not present and actively engaged in keeping the breeder deer in constant motion from the source pen to the destination pen.

                 (f) Except as provided in this section, no deer, livestock, exotic livestock, or similar animals may be present in, confined in, or have access to a deer breeding facility other than:                            (1) the breeder deer reflected on the herd inventory for the facility; and

                         (2) deer that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L. 

                 (g) An edifice, structure, building, working facility, barn, or similar infrastructure identified on a facility diagram required under this subchapter may be used on a temporary basis to handle animals other than susceptible species, provided the animals are at no point commingled with deer within the facility or allowed to access any space within the facility that is ever occupied or used by deer within the facility other than the edifice, structure, building, working facility, barn, or similar infrastructure used temporarily handle the animals. For the purposes of this subsection, “temporary” means only the amount of time necessary to accomplish a specific short-term task and does not include any longer period of time or any period of time during which animals are unattended. The provisions of this subsection apply only to a facility permitted prior to the effective date of this subsection; following the effective date of this subsection, all facilities shall be designed in such a fashion as to provide access to handling infrastructure that is external to the breeding facility.

                 (h) An edifice, structure, building, working facility, barn, or similar infrastructure that is or is to be used or occupied by animals other than susceptible species is not required to be wholly within and separate from the perimeter fence required by subsection (a) of this section, but must be:

                         (1) configured and constructed in such a fashion so as to prevent direct contact of any kind (i.e., nose-to-nose contact through a fence) between deer within the facility and susceptible species outside the facility; and

                         (2) secured when not in use so as to prevent susceptible species from outside the facility from entering the edifice, structure, building, working facility, barn, or similar infrastructure.   

                 (i) All deer breeding facilities located on a single property shall be separated by at least ten feet and facilities are prohibited from sharing infrastructure for any reason.

                 (j) The provisions of subsection (a)(2) and (i) of this section apply to all facilities on the effective date of this subsection; all other provisions of this section apply only to new facilities permitted on or after the effective date of this subsection. The provisions of this section in effect on the date this subsection took effect continue in force and effect for permits issued prior to the effective date of this subsection but do not control over the provisions of §65.81 of this title (relating to CWD Risk Mitigation Provisions).

                 (k) An indoor facility is acceptable if it meets the standards described in this section and provides permanent access to an outdoor environment that is sufficient for keeping the breeder deer in captivity.

                 (l)[(b)] A permittee shall ensure that deer have access to adequate food, a continuous supply of water, and ample cover or shelter.

                 (m)[(c)] Immediately upon discovering the escape of breeder deer from a facility, a permittee shall notify the department. The notification shall include a detailed description of the permittee’s intended actions to recapture the escaped deer, including the methods that will be employed to recapture the deer and the dates and times that recapture will be attempted. The permit holder shall notify the department daily of the efforts to capture the escaped deer until the escaped deer are captured. If after ten days the permittee is unable to capture escaped breeder deer that have been reported in accordance with this subsection, the deer may not be recaptured or held in a deer breeding facility unless specifically authorized in writing by the department for purposes of disease management.

                 (n)[(d)] If a permit holder is unable to recapture escaped breeder deer reported as provided under subsection (m)[(c)] of this section and the breeding facility is designated as NMQ at the time of or subsequent to the time of escape under the provisions of Subchapter B, Division 2, of this chapter, the property on which the deer breeding facility is located and any tract of land contiguous to the property under common ownership shall be subject to a department disease-testing plan requiring mandatory CWD testing and reporting.

        §65.610. Transfer of Deer.

                 (a) – (d) (No change.)

                 (e) Release.

                         (1) – (4) (No change.)

                         (5) It is an offense for any person to:

                                  (A) release, cause, allow, or participate in the release of a breeder deer that does not bear the identification prescribed by Parks and Wildlife Code, §43.3561, and any applicable herd plan; or

                                  (B) remove the identification tag required by this section from such deer except as a consequence of reducing the deer to possession following lawful take under a hunting license.

                 (f) – (g) (No change.)

        §65.611. Prohibited Acts.

                 (a) – (h) (No change.)

                 (i) It is an offense for any person to violate or fail to comply with the provisions a disease-testing plan created under the provisions of §65.605(m)[§65.605(d)] of this title (relating to [Holding] Facility Standards and Care of Deer).

                 (j) (No change.)

                 (k) Except as provided in this subchapter[under §65.602(e) of this title], no person may possess deer, livestock, exotic livestock, or similar animals in a deer breeding facility, or allow deer, livestock, exotic livestock, or similar animals to access a deer breeding facility other than:

                         (1) – (2) (No change.)

        The repeals are proposed under the authority of Parks and Wildlife Code, Parks and Wildlife Code, §42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, or final processing requirements or provisions of §§42.001, 42.018, 42.0185, 42.019, or 42.020, or other similar requirements or provisions in Chapter 42; Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and  §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

        The proposed repeals affect Parks and Wildlife Code, Chapters 42 and 43.

        §65.81. Containment Zones; Restrictions.

        §65.82. Surveillance Zones; Restrictions.

        §65.83. Special Provisions.

        §65.84. Powers and Duties of the Executive Director.

        §65.85. Check Stations.

        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