TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 65. WILDLIFE

The Texas Parks and Wildlife Commission in a duly noticed meeting on January 23, 2025, adopted the repeal of 31 TAC §§65.81 - 61.85, 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. Section 65.88, concerning Carcass Movement Restrictions, §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities, and §65.605, concerning Facility Standards and Care of Deer, are adopted with changes to the proposed text as published in the December 20, 2024, issue of the Texas Register (49 TexReg 10303) and will be republished. The repeals, new §65.81, and amendments to §§65.80, 65.90, 65.92, 65.94, 65.95, 65.602 - 65.604, 65.610, and 65.611 are adopted without change and will not be republished.

The change to §65.88 replaces the word "as" with the word "a" in subsections (a)(2) and (d)(2) to preserve grammatical sense and alters the title of the subsection to reflect the fact that the section now prescribes carcass disposal requirements and no longer addresses carcass movement.

The change to §65.95 renumbers paragraphs (1)- (5) in subsection (g) to correct a numbering error in the current rule. The change is nonsubstantive.

The change to §65.605 alters subsections (g) and (h) to clarify the circumstances under which infrastructure within deer breeder facilities may be used to handle species other than deer, including other susceptible species and livestock.

The repeals, amendments, and new rule 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 rules is to reduce the probability of CWD being spread from locations and facilities where it does or might exist and to minimize regulatory inconvenience for hunters, landowners, and land managers.

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 managed and measures are in place to aid in containment where possible.

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. 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 commission's directive is accomplished by this rulemaking.

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 (since January 1, 2020), 30 deer breeding facilities where CWD has been confirmed transferred a total of 8,799 deer to 249 additional deer breeding facilities and 487 release sites located in a total of 144 counties in Texas.

The current comprehensive rules address disease response with respect to directly connected facilities (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 rules as adopted 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 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 rules 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 repeals eliminate rules imposing CWD management zones, 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 are necessary any longer.

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

New §65.81, concerning Risk Mitigation Provisions, implements 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.

New subsection (a) provides for the applicability of the 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 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 ceases. 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.

New subsection (b) specifically addresses the movement of live deer under a deer breeder's permit in proximity to a free-range positive. New subsection (b)(1) specifies 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.

New subsection (b)(2) provides 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.

New subsection (b)(3) and (4) provides 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 has been "double fenced" for at least one year prior to the detection and a round of ante-mortem testing of all eligible-age deer within the facility is completed (with results of "not detected") following the free-range detection, the risk of spreading CWD is probably low. Alternatively, the department has determined that if a breeding facility in proximity to a free-range positive has been "double fenced" for less than one year prior to detection (or not at all) and then completes a round of ante-mortem testing of all eligible-age deer within the facility (with results of "not detected") not sooner than one year following the completion of the "double fence," 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.

New paragraph (4) acknowledges the efficacy of surveillance achieved during the effectiveness of the current rules being proposed for repeal in this rulemaking and the associated epidemiological value of that surveillance to breeding facilities prospectively affected by the new rules. 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).

New subsection (b)(5) provides 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 new paragraph implements 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 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 provision also stipulates 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 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 an acceptable 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 ante-mortem testing methodologies. New paragraph (6) provides that during the three-year period required by paragraph (5), the department would authorize the transfer of deer meeting the 20-month residency requirement to any facility authorized to receive deer (anywhere in the state), but deer that do not meet the 20-month residency requirement can be transferred only to release sites that are entirely within proximity distance of the free-range positive. The transfer of deer to release sites within the proximity distance does not represent as high a comparative risk for epidemiological assessment as the transfer of deer to facilities beyond the proximity distance, because CWD is known to exist within the area already. On the other hand, deer transferred beyond the proximity distance have the potential to expose new areas not previously known to have CWD; therefore, the department believes it is prudent to restrict the transfer of deer beyond the proximity distance only to breeder deer that have a "not detected" antemortem test result for a tissue sample collected after the 20-month residency has been established. The provision also allows 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.

New subsection (b)(7) provides 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 concentrated within a captive breeding facility at a location where CWD is already known to be present.

New subsection (b)(8) prohibits 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 provision prohibits the 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.

New subsection (b)(9) addresses 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 amendment prescribes the same requirements to assess and screen for the presence of prions that are prescribed by rule for new facilities.

New subsection (c) provides 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 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 new subsection requires DMP recipients in proximity to a free-range positive to test either 100 percent of hunter-harvested deer or 15 hunter-harvested deer (whichever value 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 provision also requires 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 to assess compliance with the rule and ensure testing requirements are achieved. The subsection also conditions the further issuance of DMPs on compliance with the test requirements of the proposed new subsection and specifies 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 subsection provides 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 DMP activities that could cause an increase in prevalence rates beyond what would normally occur in the free-ranging population.

The amendment to §65.88, concerning Deer Carcass Disposal Requirements, standardizes carcass disposal methods to eliminate separate requirements applicable to susceptible species harvested outside of Texas and clarifies existing rules governing disposal of carcasses. The amendment eliminates current subsection (a), modifies current subsection (b) to accommodate applicability to susceptible species harvested outside of Texas, adds new subsection (b) to expressly prohibit rendering as an acceptable method of disposal, and alters current subsection (c) to allow for the deboning of carcasses at a location other than the property of harvest. The amendment also clarifies that persons opting to bury unused carcass parts are expected to immediately cover those parts as provided in the current rule, and that during 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 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 amendment eliminates current subsections (e) and (f) because they are no longer necessary.

The amendment to §65.90, concerning Definitions, adds 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 amendment defines "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," is 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" is defined as "a deer breeding facility where CWD has been confirmed to exist." "Not available/unavailable for testing" is 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 address 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 to CWD (and thus infected) 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 amendment defines "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 rules must account for the discovery of CWD in animals in general, not just in native wildlife. "Whole-herd test" is 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 §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 amendment defines "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 amendment alters the definition of "liberated deer" to remove redundancy and includes the presence of other identifiers that could testify to the fact that a deer was at one time a breeder deer.

The amendment to §65.92, concerning CWD Testing, alters internal references to conform with changes made 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 amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, alters 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 amendment to §65.95, concerning Movement of Breeder Deer, requires 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 even 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 amendment also prohibits 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 rules as adopted, 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 amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities, eliminates references to provisions in Division 1 of this subchapter that are no longer meaningful. The amendment also corrects an inaccurate internal reference in subsection (e)(3).

The amendment adds new subsection (f) to provide additional avenues to restore 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 amendment provides 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. New subsection (f)(1) provides that for such facilities, MQ status could be restored, provided the facility is fenced in accordance with the requirements of §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 and/or post-mortem, with "not detected" results) in each of the two reporting years preceding 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 provision implements 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 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 18 to 24 months, depending on the individual animal, and becomes progressively 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 adopted 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 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 reduces the effectiveness of efforts to mitigate disease transmission and poses avoidable risks to other members of the regulated community, landowners, and hunters. Finally, the provision stipulates that compliance with the rules does 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 amendment alters current subsection (h) to implement additional measures to facilitate and expedite the department's epidemiological investigations in the event that CWD is detected in a breeding facility. The amendment requires 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) and immediately cease the internal movement of deer between pens in the facility unless otherwise authorized by the department. Upon confirmation of CWD, a permittee must 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 amendment makes conforming changes to internal cross-references.

The amendment to §65.602, concerning Permit Requirement and Permit Privileges; General Provisions, adds a reference to Subchapter B of the chapter to subsection (b)(4) and eliminates the time-based provision in subsection (d). The amendment to subsection (b) is necessary because another element of this rulemaking affects attempts to recapture escaped breeder deer and the two provisions should be harmonized to prevent confusion. The alteration to subsection (d) is necessary because the provision is no longer applicable or necessary. The amendment eliminates current subsection (e) and relocates 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 amendment to §65.603, concerning Application and Permit Issuance, requires 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 new §65.81) and clarifies that a facility/fence inspector cannot be an employee of the department or the permittee, which is intended to prevent conflicts of interest. The amendment also updates an internal reference to definitions.

The amendment to §65.604, concerning Disease Monitoring, alters the reference to Subchapter B of Chapter 65 to remove a reference to Division 2, which is no longer necessary.

The amendment to §65.605, concerning Holding Facility Standards and Care of Deer, retitles the section, implements additional fencing requirements, prescribes internal infrastructure requirements, and prohibits 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 prescribes 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 amendment stipulates 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 amendment to 65.605 also adds new subsection (c) to make explicit that under the rules as proposed, a deer breeding facility consists of the entirety of the area within the perimeter fence required under subsection (b).

The amendment to §65.605 also adds new subsections (d) and (e) to ensure that breeder deer are at all times (with exceptions) contained inside the "double fence" and stipulates 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 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 amendment to §65.605 also creates 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 occurring because it presents an unacceptable risk of CWD being transmitted between breeding facilities via environmental or direct contact. Therefore, the 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 also provides clarification that facility infrastructure such as buildings, sheds, etc. need not be completely within and separate from the perimeter fence required by the rules, 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 amendment to §65.605 also adds new subsection (j) to clarify that no current permittee is required to erect a perimeter fence but all permittees are required to comply with the other provisions of the proposed amendment. Finally, the amendment adds 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 or facilitate direct animal-to-animal contact.

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

The amendment to §65.611, concerning Prohibited Acts, makes changes as necessary to conform the applicability of the section to the subchapter.

The department received 1,414 comments opposing adoption of the rules as proposed. Of those comments, 201 provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow. The department notes that because some comments in opposition to the rules consisted of multiple points, the department has organized the response to public comment accordingly; therefore, the number of responses is greater than the number of commenters.

Eighteen commenters opposed adoption of the rules as proposed and stated that the rules are onerous, overkill, out of control, excessive, government overreach, intrusive, a witch hunt, or some other similar descriptive language meant to characterize the department's actions as arbitrary, egregious, and unnecessary. The department notes that the comments in most if not all cases seemed to be directed at the agency's rulemaking regarding CWD management generally and did not identify opposition to any specific component or provision of the rules as proposed. The department nevertheless disagrees with the comments and responds that until now, a primary component of the department's response to the emergence of CWD has been the creation by rule of CWD management zones surrounding locations where CWD is detected, within which surveillance sampling in the form of mandatory testing of hunter-harvested deer is conducted to determine the prevalence and distribution of CWD in that area. The zone system was unpopular, particularly in those areas where zones were established, because of perceived stigma. However, the department has a statutory duty to protect and conserve captive and free-ranging populations of indigenous deer and because CWD continues to be detected (primarily in deer breeding facilities and release sites associated with breeding facilities) across the state, the commission directed staff to develop another approach, which is reflected in the rules as adopted, that eliminates CWD management zones and associated rules. The department believes the rules as adopted have a credible probability of retarding community spread in free-ranging populations when and where it is detected. The department believes the rules as adopted are sensible, appropriate, and reasonable, as well as an indication that public comment is taken seriously by the commission and department. No changes were made as a result of the comments.

Thirteen commenters opposed adoption of the rules as proposed and stated that CWD cannot be eradicated and hasn't been eradicated in free range herds. The department agrees with the comments in part and responds that once established, CWD cannot be eradicated; the goal of the agency's rules isn't eradication, it's early detection. There are examples where the rapid detection and intensive management of CWD in free-range herds appears to have prevented further detections. Even within Texas, no further detections have been found in Del Rio (three free-ranging positives) for at least four hunting seasons following the timely, intensive efforts to reduce native deer populations in addition to other mitigation measures. The department does recognize, though, that in areas where CWD has become established (in animals, the environment, or both), efficient eradication of the disease may not be possible; however, it is precisely because it is difficult if not impossible to eradicate CWD once it is established that it is imperative to keep the disease from spreading. No changes were made as a result of the comments.

Twelve commenters opposed adoption of the rules as proposed and stated that the rules are evidence of department antipathy or animosity towards deer breeders and indicative of a department desire to eliminate or destroy deer breeding, describing the rules, variously, as discriminatory, bullying, crippling, a "war on breeders," "trying to put breeders out of business," "punishing" breeders, and other unflattering adjectives and phrases with negative connotations meant to indicate belief in a pre-existing, continuing bias or animus towards deer breeding and deer breeders. The department disagrees with the comments and responds that the rules as adopted are not intended to be punitive or a demonstration of disregard or contempt for the regulated community; rather, they represent the earnest desire of the department to discharge its statutory duty to protect and conserve the wildlife resources of the state from the growing threat of CWD and to do so in a manner that is conscientious and respectful of the interests of the regulated community. As noted in the department response to other comments, many comments seemed to be directed at the agency's historical or previous rulemaking regarding CWD management generally and did not express opposition to any particular component or provision of the proposed rules. The department also notes that adoption of the rules was publicly supported on the record by the Texas Deer Association, historically the primary voice for the regulated community. No changes were made as a result of the comments.

Eleven commenters opposed adoption and stated the rules as proposed would hurt property values. The department disagrees with the comment and responds that the rules prescribe testing requirements for the transfer of breeder deer between deer breeders and enhances surveillance requirements at trace-out release sites, neither which have been demonstrated to affect property values. No changes were made as a result of the comments.

Eleven commenters opposed adoption of the rules as proposed and stated in various ways that the rules are not justified because of the low positivity and prevalence rates for CWD in captive deer populations and because there is no evidence that CWD is more common in breeder pens than in the wild. The department disagrees with the comments and responds that comparing positivity and prevalence rates in captive versus free-ranging populations (especially on a statewide scale) is of little to no value in informing disease management strategies because captive deer, which are artificially concentrated at high densities and frequently translocated over long distances, are a subjectively distinct and different epidemiological context in comparison to free-ranging deer, which are loose on the landscape, far more dispersed, and absolutely limited by natural home ranges. In any case, the data show that the majority of CWD detections and newly affected areas in Texas over the last 10 years can be attributed to breeder deer as well as the transfer of breeder deer from one location to another, which strongly suggests that continued attention to disease monitoring in captive populations is warranted, especially in the absence of robust surveillance efforts (such as mandatory testing of hunter-harvested deer currently required in CWD management zones, which are repealed in this rulemaking) in areas where CWD is detected in either captive or free-ranging populations. The rules as adopted address that fact. No changes were made as a result of the comments.

Eight commenters opposed adoption and stated that the rules will harm, kill, destroy, or otherwise negatively impact deer hunting, and another seven commenters stated in various ways that the rules will hurt small businesses, businesses associated with the hunting industry, employment, job creation, the state economy, and local economies, and other general assertions of extreme financial hardship or harm at both micro and macro levels. The department disagrees with the comments and responds that the rules as adopted, to the extent that they affect individuals other than deer breeders, liberalize carcass movement and disposal requirements for hunters and landowners, and completely eliminate mandatory testing of hunter-harvested deer and other requirements associated with CWD management zones, which are being eliminated. The remainder of the rules as adopted do not directly regulate any persons other than those who hold a deer breeder permit and those who purchase deer from deer breeders for purposes of release and whose release sites are subsequently linked epidemiologically to a deer breeding facility where CWD has been detected ("positive facility"). The department notes again that there is a common misperception that deer breeders furnish or are responsible for a significant component of the deer population in Texas; in fact, captive-bred deer represent an extremely small percentage (generously estimated at less than four percent) of the total number of deer harvested annually in Texas and in that context, whatever ancillary, indirect economic impact of the rules as adopted is exceedingly minor, if it exists at all. The department also notes that if CWD is allowed to become widespread, the economic impacts and the impacts to the far larger economy associated with the hunting of free-ranging deer, as well as further negative impacts to the regulated community itself will be significant. The department also notes that the rules as adopted were supported by the Texas Deer Association, historically the primary voice for the regulated community. No changes were made as a result of the comments.

Nine commenters opposed adoption of the rules as proposed and cited the department's response to the discovery of CWD at the department's Kerr Wildlife Management Area (WMA) as evidence of a double-standard, incompetence, wasted research opportunity, and department dishonesty, all which make the rules unnecessary. The department disagrees with the comments and responds, first, that the rules, as proposed and adopted, have exactly no relationship with or connection to events at the Kerr WMA; however, when a deer in the research herd at the Kerr WMA was suspected of being positive for CWD (on the basis of a live-animal test), the department promptly responded by depopulating the facility to mitigate the risk that the facility presented to surrounding deer populations, which is consistent with department protocol, best management recommendations for similar situations in general, and sound science. The department disagrees depopulation of the facility was a wasted research opportunity, as the scientific literature is already clear with respect to what occurs in a captive population following confirmation of CWD (additional transmission, infection, and mortality), and allowing the disease if present to incubate and spread would have been irresponsible in the absence of appropriate biosecurity and confinement measures. The department asserts that the prompt execution of protocol to mitigate the transmission of CWD within and outside the Kerr WMA deer breeding facility was clearly the correct decision. The department also notes that it has been completely transparent at all times with respect to this incident, having immediately issued press releases to inform the public, providing notification to adjoining landowners, local officials (including legislators), and media outlets. The department further notes that all records and data regarding the incident are public records available for inspection by request. No changes were made as a result of the comments.

Nine commenters opposed adoption of the rules as proposed and stated in various ways that the department is overreacting, blowing things out of proportion, or otherwise reacting with inappropriate alarm. The department disagrees with the comments and responds that the rules as adopted are necessary in light of the continuing detection of CWD in deer breeding facilities and the commission's direction to eliminate the zone system of CWD surveillance. The department also responds that it is similarly necessary to enhance the department's ability to quickly test deer at release sites that have been epidemiologically linked to a positive deer breeding facility or facilities. No changes were made as a result of the comments.

Nine commenters opposed adoption of the rules as proposed and stated that CWD isn't killing deer, the state is. The department infers that the subject of the comments is depopulation events conducted at deer breeding facilities within which CWD has been confirmed. The department disagrees with the comments and responds, first, that depopulation is not mandatory under the rules as proposed unless the affected permittee refuses to sign a department herd plan designed to mitigate disease propagation risk, and that in any case, CWD is invariably fatal; thus, because current rules prohibit the removal of live deer from positive facilities, it is highly probable that it is simply a matter of time before every deer within a positive facility succumbs to the disease anyway. Depopulation is simply a more expedient, less epidemiologically problematic avenue to disease suppression. No changes were made as a result of the comments.

Eight commenters opposed adoption of the rules as proposed and expressed doubts concerning the threat or indeed the existence of CWD, claiming the disease has been around forever, isn't fatal, has no effect on deer populations, only affects small portions of the deer population, hasn't caused "die-offs," isn't prevalent, has never killed a deer, cannot be acquired by natural means, is a government plot to control private property and food supply, a scam to obtain federal funds, or some other, similar expression of incredulity or disbelief, and that the department's response to CWD is therefore a waste of time and money because it is not warranted. The department disagrees with the comments and responds that although it is true that much remains to be done before CWD is well understood, there is absolutely no scientific debate at all as to whether it is real, transmissible, transmissible without human agency, without question invariably fatal once acquired, and can have population level effects if allowed to spread. Further, the department notes that the absence of large-scale die-offs isn't an appropriate metric because CWD can take years to reach a high enough prevalence in free-ranging deer populations for such effects to become observable, at which point it becomes impossible to eradicate. The department's management efforts are intended to prevent this outcome from occurring. The department also responds that although the department's CWD management efforts are funded in large part by federal grants under the Pittman-Robertson Act of 1937 (which imposed a federal excise tax on firearms and ammunition sales to provide annual matching funds for wildlife management activities in each state based on the ratio of the state's land area to the total U.S. land area, and the number of paid hunting license holders in the state compared to the total number of paid hunting license holders in the U.S.), the apportionment is finite and therefore CWD research and management activities occur at the expense of other wildlife management activities. In short, there is no fiscal incentive at the state or federal level driving or motivating the department's CWD management efforts. The department further responds that allegations the rules promulgated by the Texas Parks and Wildlife Commission are or are part of a government plot to control private property and food supplies are absurd on their face. No changes were made as a result of the comments.

Eight commenters opposed adoption of the rules as proposed and stated in various ways that the rules are unsupported by science generally or peer-reviewed science in particular, or that the science upon which the department bases the rules is flawed. The department disagrees with the comments and responds that its CWD management policy and regulatory stance are driven by and reflect the best available science, which is publicly available from any number of sources, but which the department is nevertheless happy to share with interested parties upon request. In addition, department staff, CWD experts, researchers, and academics briefed the commission on the state of science on CWD during a specially scheduled open public work session on October 5, 2022, and a regularly scheduled open public work session on November 1, 2023. No changes were made as a result of the comments.

Eight commenters opposed adoption of the rules as proposed and stated displeasure with provisions that acknowledge statutory provisions regarding the removal of the permanent, visible identification of breeder deer required by statute. The commenters seemed to be under the impression that the commission possesses the discretion to prescribe alternatives to statutory law and that the legislature has forbidden the department from enforcing statutory provisions that do not allow permanent identification to be removed from breeder deer upon or following release. The department disagrees with the comments and responds that it is a settled matter of law that all indigenous wildlife (including white-tailed and mule deer) anywhere in Texas are at all times the property of the people of state. White-tailed and mule deer can be possessed in captivity only under a deer breeders permit issued by the department pursuant and subject to the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L and rules of the commission adopted under authority delegated to the commission by Parks and Wildlife Code, Chapter 43, Subchapter L. Under Parks and Wildlife Code, §43.3561 all breeder deer are required by March 1 of the year following the birth year to be permanently identified by an eartag and electronic identification (EID). Parks and Wildlife Code, §43.3561(h) requires deer breeders to replace eartags that are damaged, missing, or dislodged. Parks and Wildlife Code, §43.3561(i) allows a deer breeder to remove an ear tag only for the purpose of immediate replacement with another tag that meets the requirements of the section. No other provision of Parks and Wildlife Code, Chapter 43, Subchapter L, allows or can be construed as to allow the removal of an eartag upon liberation. The department presumes that if the legislature intended to allow a tag to be removed for any reason other than to replace it, it would be so provided or otherwise expressly or implicitly allowed under the regulatory authority delegated to the commission by the legislature. Although the commission is authorized to make rules governing the possession of breeder deer held under the subchapter, the precepts of code construction and legal interpretation dictate, in the absence of explicit permission to do so, that the commission's rulemaking authority with respect to permanent identification cannot be understood as to allow the nullification or contradiction of those statutory provisions. The rules as adopted do not create a new requirement of law, but repeat the statutory requirements governing the removal of required eartags. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated that "requiring tags for deer that test negative will impact the hunting industry that deer breeders rely on." The department disagrees with the comment and responds that rules as adopted do not impose a requirement that does not already exist in statute, the commission does not possess the regulatory authority to eliminate statutory requirements, and that there is no reason to believe that the presence or absence of an ear tag influences hunting behavior. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated that the rules reflect a "Lord and Master" perspective with no regard for "their common-sense impact" on deer breeders. The department disagrees with the comment and responds that the department has a statutory duty to protect the wildlife resources belonging to the people of the state of Texas and the rules as adopted, as has been the case with all regulations involving deer breeding for over a decade, were painstakingly developed with the intensive involvement of and input from subject matter experts including landowners, land managers, hunters, biologists, veterinarians, epidemiologists, other scientists and academics, and members of the regulated community. Further, the rules were promulgated in faithful compliance with all applicable provisions of the Administrative Procedure Act. Therefore, the department disputes the notion that the regulations constitute any kind of diktat, arbitrary imposition of authority, or other, extralegal exercise. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated, "the individuals from the Texas Deer Association (TDA) negotiating these rule changes did not accurately represent the best interests or desires of the breeders at large." The department disagrees with the comment and responds that the internal dynamics and membership relations within a trade association are none of the department's business and shouldn't be; however, the department also responds that TDA for decades has been acknowledged as the premier trade association representing deer breeders, as it has been a ubiquitous advocacy presence at the department, TAHC, and the Texas Legislature. As such, TDA's involvement has long been solicited by the department to provide a significant voice for the regulated community with respect to agency rulemaking. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated that the rules as adopted are a "game of semantics" because although current CWD management zones are being eliminated, the proposed rules have the effect of creating de facto zones that would "still greatly restrict the movement of deer indefinitely for many deer breeding facilities regardless of whether there has been confirmed CWD positive deer at that facility, and would also restrict movement of deer in many free range areas as well." The department disagrees with the comment and responds that the rules as adopted replace a disease-management model based on surveillance of free-ranging deer in zones around any location where CWD has been detected (free-range or deer breeding facility). The zones were implemented individually by rule on a case-by-basis and their boundaries were based on the use of the best available science and data to determine the geographic size of the area around each positive case within which additional CWD detections were either probable or could reasonably be expected. Within those zones, the rules imposed carcass movement restrictions and testing requirements on all deer harvested and placed limited restrictions on deer breeding facilities within those zones (provided the facilities were not positive facilities or epidemiologically linked to a positive facility). The rules as adopted replace that disease management model with one predicated on the discovery of CWD only in free-range populations. The rules as adopted do away with all current CWD zone designations, completely eliminate all carcass movement and testing requirements for hunters, and do not affect any deer breeding facility that is not within five miles of a location where CWD has been discovered in a free-ranging white-tailed deer (or, 25 miles from a positive mule deer). As noted in the preamble to the proposed rules, the rules would eliminate 37 CWD management zones without affecting a single deer breeder (neither of the two deer breeders that could have been affected by the rules as adopted utilizes a business model that would trigger the components of the rules as adopted). With respect to the semantics of the word "zones," the department respectfully replies that any rules that implement movement and/or testing requirements for breeder deer must necessarily relate to a facility's proximity to the location of disease and associated epidemiological risk, because they are regulatory measures that apply to specific places, namely, deer breeding facilities (as opposed to all places that are not deer breeding facilities). Irrespective of semantics, the directive of the commission was to eliminate the CWD management zones in current rule, which the rules as adopted accomplish. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated that the rules exchange the elimination of CWD management zones for something worse - requiring positive facilities to make a choice between killing all the deer in the facility or entering into a department herd plan. The commenter stated that despite federal CWD program standards that allow Texas to shorten quarantine periods and no meaningful data to support a five-year timeline, the department insists on the "five-year quarantine," which the commenter states will "destroy" any deer breeding business and property values, which is indicative of "a Lord and Master" approach. The department disagrees with the comment and responds, first, that the provisions addressing depopulation activities and herd plans are not intended to and were never purported to be a measure in lieu of CWD management zones, which are a separate regulatory matter. Next, the department responds that with respect to depopulation orders, the rules as adopted do not create, remove, or alter any remedy currently in effect under statutory or administrative law for deer breeding facilities where CWD is discovered. Under Parks and Wildlife Code, §43.953, the department may order the depopulation of a facility upon a determination that the deer within the facility pose a threat to the health of other deer or other species, including humans, and department rules have always provided the alternative of entering into a herd plan (which the department notes is not the same thing as a quarantine). The department further notes that the federal USDA herd certification program mandates a minimum five-year period with no evidence of CWD before a herd can be considered for certification as low risk. Additionally, as stated by the department earlier in this preamble and in many other rule actions, there is no credible evidence to indicate or even suggest that department rules, rather than the presence of a fatal and highly transmissible wildlife disease, result in any effect, positive or negative, on real property values. Finally, the department responds that it does not regard the relationship between the department and the public or the department and the regulated community as that of "Lord and Master," as the department has a statutory duty to conserve public wildlife resources and does so in a conscientious and ethical manner. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated that the rules, by implementing certain infrastructure and testing requirements for deer breeding facilities in proximity to free-range positives, would create the risk of "de facto one-to-three-year quarantines" for deer breeding facilities in which CWD has not been detected, which is a "new way of imposing a Containment Zone" on breeding facilities, contrary to the claims that the concept of CWD management zones had been eliminated. The commenter stated that the rule "serves no practical purpose and appears designed solely to discourage new breeders." The department disagrees with the comment and responds that the comment is similar in substance and implication to an earlier comment regarding semantic distinctions and the department's response to the earlier comment is appropriate in this instance as well. The department also notes that the rules as adopted absolutely and intentionally provide for a pathway to full movement status for all breeding facilities that are free of CWD and that the presence of CWD itself is and should be a factor in any prospective permittee's decision-making process. Finally, the department responds that the rules as adopted do indeed have a practical purpose, which is to prevent the spread of CWD. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated the rules could result in a "one-year quarantine" if the department staff "in their sole discretion" determine that the facility's infrastructure and fencing standards have not been in place for at least one year prior to notice by the department that a positive deer has been discovered in proximity to the breeding facility. The comment further stated that the notice responsibilities are not specified, which leaves the rule "vague and open to arbitrary interpretation." The department disagrees with the comment and responds that the provisions apply to CWD-free breeding facilities within the proximity distance of a free-range positive and condition the privilege of being able to transfer breeder deer anywhere in the state on the presence of a "double fence" around the facility for at least one year prior to being notified by the department that a positive white-tailed deer has been discovered within five miles (or, in the case of a mule deer, 25 miles away). The department is confident that it will be able to determine whether or not a fence meeting the regulatory requirements has been in place at a breeding facility for the requisite length of time, primarily because all permittees have, since 2003, have been required by rule (31 TAC §65.603) to notify the department of any physical alterations to a facility's infrastructure prior to making the alterations and to provide the department with a diagram illustrating the changes. The department is similarly confident in the process by which deer breeders would be notified, in the event that CWD is detected in a free-range deer within a proximity distance, as it will be the same process the department has used since 2013 to immediately notify deer breeders of any and all changes in movement status. That process, to the department's knowledge, has not been the source of complaints from the regulated community. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated that the rules do not identify or describe how the location of a free-range positive will be determined by the department, which will allow the department to assert the locations of positive deer without oversight criteria or uniform standards for "searches." The commenter went on to question if the "the department will begin actively searching for CWD-positives cases in natural free-range habitats as often as they search in roadkill," and asked, "will they search anywhere, or only near facilities they wish to shut down." The commenters stated that "this unchecked discretion far lacks accountability and fairness" and stated that the department was acting as "Lord and Master." The department first disagrees strenuously with any allegation that it somehow selects or is looking for a reason to "shut down" any deer breeding facility. All department actions affecting movement status for deer breeding facilities are completely predicated on documented epidemiological or law enforcement investigations, or other mechanisms as provided by law, and any assertions otherwise are not credible. The department further responds that the rules as adopted do not provide for "searches" for CWD (whatever is meant by that term) in response to the discovery of CWD in a free-range deer or susceptible species. The rules as adopted instead implement movement restrictions in some cases at deer breeding facilities upon discovery of CWD within the proximity distances. The department further responds that the department does not actively "search" for CWD per se; it until now has relied on two passive mechanisms for assessing the prevalence and distribution of CWD, if it is present, on the landscape (i.e., outside of deer breeding facilities): the CWD zone system (which implemented mandatory testing of all hunter harvested deer in areas surrounding CWD discoveries, which is eliminated by this rulemaking) and a continuous statewide monitoring effort, consisting of voluntary submission of hunter harvested deer and other mortalities, supported by opportunistic acquisition, such as roadkill. In other words, there is no directed, purposeful, intensive detection effort around deer breeding facilities as opposed to free-range populations. No changes were made as a result of the comments.

Seven commenters opposed adoption and stated that the components of the rules regarding fencing and inspections have the potential to cause significant problems for breeders because they contain no guidelines for compliance and enforcement, which the commenter stated would provide the department "with another tool to target breeders unfairly." The commenters went on to provide a list of various fence-related construction materials and methods that are not specifically addressed by rule, such as standards for posts, materials, and fasteners, which the commenters posited could be used to "shut down" breeding facilities. The department disagrees with the comments and responds that the provisions of 31 TAC §65.605(a) govern the fencing requirements at deer breeding facilities. That section mandates that "the entire perimeter fence of a facility containing breeder deer, including medical facilities, shall be no less than seven feet in height, and shall be constructed of department-approved net mesh, chain link or welded wire that will retain breeder deer." Those provisions are straightforward, easy to understand, easy to comply with, easy to enforce, and have been in effect since 1995 without complaints from the regulated community. The department further responds that it is unnecessary to prescribe additional, detailed standards for fencing materials and construction methods, as the department presumes the regulated community, motivated by the desire to protect investment, will do whatever is desirable beyond the requirements of the rule in order to reduce or eliminate the likelihood of the loss of valuable breeder deer and to ameliorate maintenance and upkeep costs. Finally, the department responds, again, that it is motivated solely and exclusively by its statutory duty to conserve public wildlife resources, not by any desire to persecute or attack deer breeders, and that it is demonstrably true that no deer breeder has been unfairly treated by the department. No changes were made as a result of the comments.

Seven commenters opposed adoption of the rules as proposed and stated that the provisions regarding fence inspections and fence inspectors were problematic in that they could be used by the department to "target" deer breeders. The commenters expressed concern that the rules did not address the question of licensure for fence inspectors, the licensing entity, training and reporting requirements, timeframes for completion of inspections, fees for fence inspections, and the lack of guidance for ensuring "ADA compliance for fence inspectors." The department disagrees with the comments and responds, first, that the commenters appear to be confusing provisions that apply to deer breeding facilities with provisions that apply to release sites. In the case of the former, the department's rules have for 30 years required an inspection of all prospective deer breeding facilities by and a letter of endorsement from a qualified third-party facility inspector, the criteria for which have also been stipulated by rule (31 TAC §65.603, concerning Application and Permit Issuance). In the case of the latter, the rules as adopted simply alter the existing provisions for facility inspectors to include fence inspections. Because the criteria for authorized facility/fence inspectors are set forth by rule, there is no need to create an additional license for that purpose or prescribe training and continuing education requirements, which would, in the department's view, create unnecessary administrative complexity. Similarly, the department believes that it is unnecessary to stipulate either a timeframe for the completion of fence inspections or a fee for the service. The department will not authorize the transfer of breeder deer to a release site unless and until the inspection has been performed, and the department believes that a fee for fence inspections is best left as a matter between landowner and inspector. The department reasons that it is the prerogative of the landowner to determine such matters, depending on the degree of urgency that exists for the release of deer. Finally, compliance with ADA (the Americans with Disabilities Act of 1990, a federal law that protects people with disabilities from discrimination) with respect to facility/fence inspectors is not within the purview of the department, as facility/fence inspectors are not department employees or representatives and their engagement is a matter between private citizens. No changes were made as a result of the comments.

Six commenters opposed adoption of the rules as proposed and stated that the rules are unconstitutional, a violation of constitutional rights, or an infringement of private property rights. The department disagrees with the comments and responds that the rules are not violative of any provision of the state or federal constitutions and do not affect private property rights in any way. No changes were made as a result of the comments.

Four commenters opposed adoption of the rules as proposed and stated that CWD can be bred out of deer in the same fashion that scrapie was bred out of sheep. The department disagrees that scrapie has been bred out of sheep, mainly on the basis that scrapie cases continue to occur and be reported, but more importantly, sheep are livestock, not wildlife. Humans have a long history of utilizing linebreeding to improve disease resistance in livestock, but it is nearly impossible with free-ranging populations because the animals are not domesticated or confined. In any case, the comment is not germane to the rules as proposed or adopted. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated that CWD doesn't or cannot harm and poses no risk to humans. The department disagrees and responds that the rules as adopted are intended to address the management of CWD in deer populations. 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. In any case the comment is not germane to the rules as proposed or adopted. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated or suggested that the department and the commission are engaging in a political agenda/conspiracy with or acting in the interests of wealthy landowners to eliminate deer breeders because they do not want market competition for hunting opportunity. The department disagrees with the comments and responds it is difficult to conceive, given the extremely small percentage of breeder deer in the overall deer population or the total harvest, and the fact that not all landowners depend on or in some cases even use hunting as an income source, that there would be sufficient economic incentive for anyone, wealthy or not, to eliminate deer breeding. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated that deer breeders are the best option for eliminating CWD because they are breeding CWD out of deer. The department disagrees with the comments and responds that at the present time there is no indication that there are any deer genetically immune to CWD and in any case it is highly unlikely and probably impossible for genetic resistance or immunity to CWD to be introduced to wild populations, given the size of the state and the broad distribution of deer across the landscape; further the United States Department of Agriculture (Wildlife Services and Veterinary Services) does not support the release of breeder deer into free-ranging populations for the purpose of manipulating CWD genetic susceptibility; however, the department does believe there is some merit to investigating the idea of breeding for reduced CWD genetic susceptibility with respect to captive populations, since the majority of CWD detections occurred in breeding facilities and movement of breeder deer is a primary risk for spreading CWD in Texas; consequently, the department has funded research projects to investigate genetic approaches to combating CWD. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated disapproval of depopulation orders, and 18 commenters stated that depopulation events killing thousands of deer achieve nothing. The department disagrees with the comment and responds that CWD is an infectious disease that kills 100 percent of the deer that contract it. It cannot be treated and it cannot be eradicated or destroyed. As such, it is without argument a serious threat to free-range populations and an existential threat to captive populations. Other species of farmed animals and livestock are faced with similar threats, such as avian influenza, tuberculosis, and brucellosis, and those producers are required to comply with movement restrictions, quarantines, testing requirements, disposal requirements, permanent identification requirements, and other disease mitigation measures. Such measures protect animal health and productivity and the marketability of products. When such diseases are detected in herds and flocks, those herds and flocks are often killed to prevent disease outbreaks that could have severe impacts on economic activity or human health and safety. The department believes that depopulation of facilities where CWD is detected is one of the most effective means of disease mitigation, but notes that depopulation is not mandatory and disagrees that the depopulation of CWD positive facilities "achieves nothing" as it is especially critical for CWD management in contexts where such measures can result in effective containment, compared with response options to detections in free-ranging populations. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated that the department should "let the market decide." The department is unable to determine the meaning of the comment, as the rules as adopted impose disease testing requirements only for deer breeders and only when CWD is confirmed within five miles of a free-range positive (white-tailed deer and exotic susceptible species) or within 25 miles of a free-range positive (mule deer) and enhance surveillance at trace-out release sites and will not affect the supply of nor demand for captive deer. No changes were made as a result of the comments.

Three commenters opposed adoption and stated that the rules make deer breeders responsible for events and situations that are beyond their control, namely, the discovery of CWD within five miles of a breeding facility. The department disagrees with the comments and responds that the rules do not assume, assign, or intimate responsibility of any kind to any person, but prescribe enhanced disease-control protocols at deer breeding facilities proximally situated to locations where CWD is confirmed in free-range populations. No changes were made as a result of the comments.

Three commenters opposed adoption and stated that the rules are "a waste of time" and the department should "let nature take its course." The department disagrees with the comments and responds that given the existential threat that CWD poses to native deer, hunting, and the economies that depend upon deer hunting, the rules are certainly not a waste of time. In addition, a deer breeding permit authorizes the artificial concentration of deer and subjects deer to translocation at distances far in excess of their natural range. No changes were made as a result of the comments.

Two commenters opposed adoption of the rules as proposed and stated that the current rules should be kept because they are working. The department agrees that the current rules are epidemiologically defensible, but the direction of the commission was to replace the current rules and develop a disease-management strategy that eliminates zones and their perceived stigma. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that the rules punish the many for the acts of a few. The department disagrees with the comments and responds that the rules are not in any way punitive or intended to function as a penal or retaliatory response to a criminal or civil offense; rather, they constitute a logical, prudent, and reasonable response to the detection of a disease that is a proven threat to native deer populations. No changes were made as a result of the comments.

Two commenters opposed adoption of the rules as proposed and stated that transfer/transport of breeder deer should be prohibited. The department disagrees with the comment and responds that although the department is charged with protecting and conserving wildlife, deer breeders have a statutory permit privilege to transfer deer in a healthy condition for purposes of release. No changes were made as a result of the comments.

One commenter opposed adoption of the rules on the basis that the severity of the threat of CWD justifies the prohibition of deer breeding altogether. The department responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the department must issue a deer breeding permit to a qualified person; thus, the commission cannot prohibit deer breeding. No changes were made as a result of the comments.

One commenter opposed adoption of the rules as proposed and stated that the rules constituted "a scheme to infiltrate businesses for tax purposes." The department disagrees with the comment and responds that the department does not possess the statutory authority to levy taxes in the first place. No changes were made as a result of the comment

One commenter opposed adoption of the rules as proposed and stated that CWD is scrapie, which doesn't harm deer, and therefore no response is warranted. The department disagrees with the comments and responds that CWD is a cervid disease that without question is related to scrapie, a similar disease found in sheep; however, it is not the same disease. In any case, this distinction is irrelevant in the context of disease surveillance, response, and management actions, as scrapie is itself a reportable disease under state and federal law and flocks infected with scrapie are often required to be destroyed. Further, the department has worked with prion researchers and made extensive efforts to identify prion strains within Texas; with over 1,000 samples analyzed, two strains have been identified as CWD and none have been identified as scrapie. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the rule's five-mile delimiter for the imposition of certain infrastructure and disease-testing standards at deer breeding facilities is unfair. The department disagrees with the comment and responds that the five-mile proximity distance represents the average natural dispersal range of free-range buck white-tailed deer, which, epidemiologically, is a credible demarcation of the extent, in relation to the location of any given positive animal, at which CWD could reasonably be expected to be detected if it existed and was spreading in a population. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the rules were "bad for conservation." The department disagrees with the comment and responds that the rules as adopted are not without conservation merit, as they will function by imposing enhanced disease-prevention measures at deer breeding facilities in proximity to locations where CWD has been discovered in free-range populations. The rules as adopted are intended to limit the further spread of CWD via anthropogenic movement so as to conserve and protect CWD-susceptible populations. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the testing requirements of the rules place burdens on veterinarians. The department disagrees with the comment and responds that the rules do not require any veterinarian to provide services to any person. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that they constitute "a waste of taxpayer money." The department disagrees with the comment and responds that the expense of combating CWD, although not insignificant, pales in comparison to the economic damage that could be inflicted were it to become widespread on the landscape, and that in any case, the department has a statutory duty to protect the wildlife resources of the state and does so with fiscal and budgetary resources appropriated to it by the legislature. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that a double-fenced deer breeding facility that has not accepted deer for years and is in compliance with all applicable testing requirements should not be required to conduct whole-herd ante-mortem testing just because CWD has been discovered in a free-range deer within five miles of the facility. The department disagrees with the comment and responds that it is prudent to impose enhanced disease testing requirements near locations where CWD has been confirmed, particularly with respect to deer breeding facilities, where deer are artificially concentrated and subject to translocation at distances far in excess of the natural range of deer, which presents a clear potential for spread. The department further responds that the rules are intended to provide deer breeders with an alternative to an absolute ban on deer transfers in areas where CWD is known to exist in free-range populations. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that because public comment was overwhelmingly in opposition to adoption, the rules should therefore not be adopted. The commenter also stated that department staff were urging members of the public to comment in support of adoption in an attempt to make the disparity less apparent. The department disagrees with the comment and responds that the right thing to do is not always the popular thing to do, that it is not at all uncommon for staff to explain to the public the rationale behind and the goals of rulemaking, and to remind interested parties of existing public comment opportunity and the importance of participation. The department also notes that a significant portion of public comment opposed to adoption is notable for verbatim repetition of statements that are either untrue, not germane, or that reflect unfamiliarity with the issues. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the methods and conduct of department depopulation efforts at a specific location where CWD has been detected were evidence of a double standard because of purported shoddy methodology and alleged lapses in biosecurity measures, including improper transport and disposal of deer carcasses, proving the department doesn't actually believe that CWD is a problem and is simply using it as a pretext to persecute the owner of the facility where the depopulation event took place. The department disagrees with the comment and responds that although there is absolutely no merit whatsoever to the accusations as they are demonstrably false, the comment in any event is not germane to the rules as proposed, as they did not and do not contemplate, set forth, or establish measures, standards, or protocols to be employed at depopulation events. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and presented historical examples of state agencies that for one reason or another were believed to have incurred the displeasure of the legislature with unpleasant budgetary results and suggested that the commission should delay action for 90 days. The department disagrees with the comment and responds that it has a statutory duty to conserve, manage, and protect the wildlife resources of Texas and enjoys a transparent and productive relationship with the legislature. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that testing should be a landowner discretion. The department disagrees with the comment and responds that it infers the comment to be in regard to landowner obligations imposed by the rules at locations that are release sites for breeder deer and subsequently become epidemiologically linked to a positive deer breeding facility. If so, the department responds that current rules already condition further approval of releases on compliance with testing requirements and the rules as adopted are, regrettably, a direct result of many examples of release site owners failing to comply with testing requirements or cooperate with the department. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that there is no reason to kill deer on the basis of a rectal tissue sample because rectal tissue is not the same as brain tissue. The department disagrees with the comment and responds that the rectal tissue test in question (as well as the obex tissue used for post-mortem testing) is approved by the United States Department of Agriculture for the diagnosis of CWD in deer. No changes were made as a result of the comment.

One commenter opposed adoption and stated that CWD tests are unreliable. The department agrees in part that ante-mortem CWD tests are not generally accepted as a test to determine that an individual is definitively uninfected with CWD, but are useful when used for herd surveillance; however, post-mortem testing or serial ante-mortem testing can increase confidence that an animal is not infected. Ante-mortem and post-mortem testing are highly specific for CWD and false positive results are exceedingly rare. Regardless, the United States Department of Agriculture has approved both ante-mortem and post-mortem testing for the diagnosis of CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that breeder deer are farm animals no different than cattle on a ranch or feed lot and should be left alone. The department disagrees with the comment and responds that deer are in fact wildlife, not livestock, and the department as a consequence has a statutory duty to manage and conserve both captive and free-ranging populations of native deer. The department further notes that farmed animals and livestock are faced with disease threats, such as avian influenza, tuberculosis, and brucellosis, and those producers are required to comply with movement restrictions, quarantines, testing requirements, disposal requirements, permanent identification requirements, and other disease mitigation measures. Such measures protect animal health and productivity and the marketability of products. When such diseases are detected in herds and flocks, those herds and flocks are often killed to prevent disease outbreaks that could have severe impacts on economic activity or human health and safety. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that deer breeders "monitor better and more successfully than TPWD." The department disagrees with the comment and responds that comparisons of testing efforts in captive herds and free-ranging populations are not useful. Deer breeders must monitor for CWD because it is required under department rules for holding a deer breeding permit; the department, meanwhile, has a statutory duty to protect wildlife resources in the state and therefore monitors CWD at both local and landscape scale to ascertain the prevalence and distribution of CWD in those environments. The department believes it is pointless to argue about who tests "better" or "more successfully," because such comparisons are not objectively meaningful. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that "countless" private biologists "have proven TPW doesn't have information to make the decision." The department is unsure as to what, exactly, the comment refers to, but disagrees that the department lacks, lacks access to, or does not use the best available science in assisting department efforts to combat CWD; is not aware of any authoritative, credible scientific evidence or peer or jury-reviewed technical literature produced by any biologist, anywhere, that validates or confirms the assertion made by the commenter. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that CWD is not naturally transmissible to deer and exists in deer populations only because of direct inoculation of research subjects. The department disagrees with the comment and responds that there is ample irrefutable evidence of natural transmission in deer and to suggest otherwise is irresponsible and incorrect. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that deer breeders and release site owners "protect the deer better than TPW." The department disagrees with the comment and responds that the recent increase in detections of CWD in captive breeding facilities refutes the notion that self-regulation of deer breeding is effective at slowing the spread of CWD. The department notes that deer breeders and release site owners are integral stakeholders in the management of CWD and the department has and will continue to rely on their input through the various committees and task forces created to address CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the zone management and testing rules are based on fictional information. The department disagrees with the comment and responds that all CWD management rules promulgated by the department have been sound in scientific design and principle and are a response to the irrefutable spread of CWD. The department also responds that the rules as proposed and adopted repeal the provisions in question. No changes were made as a result of the comment.

One commenter opposed adoption and stated that more research is needed on free-range deer. The department agrees with the comment but disagrees that the need for more research negates the need for the rules. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that breeders should be "left alone to test deer prior to release." The department agrees with the comment and responds that the rules as adopted do not require a representative of the department to be present or involved in any way with testing activities conducted in compliance with the rules. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules constitute an unacceptable relaxation of current levels of protection. The department agrees that the rules as adopted are, in a purely epidemiological sense, a relaxation in comparison with the rules they replace; however, the department disagrees that the rules are unacceptably so and responds that the direction of the commission was to develop a disease-management strategy to replace the current rules that implement a zone system. In the absence of a zone system, the department implements an approach that requires disease management protocols at deer breeding facilities based on the proximity of a breeding facility to a location where CWD has been detected, which is intended to prevent the disease, if it is present, from entering nearby breeding facilities and being transferred elsewhere. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the current administration of "herd plans" is unworkable because current "herd plans" are "generic," do not treat small acreages differently than large acreages, and are not "tailored" to properties in question. The department disagrees with the comment and responds that herd plans are absolutely tailored to individual properties and thus are not generic. The department further responds that from an epidemiological perspective, the size of a property is irrelevant, since herd plans are based on statistical models that dictate the particular goals for achieving confidence that CWD is not present within a certain population size at a specific prevalence. No changes were made as a result of the comment.

One commenter opposed adoption and stated that breeder deer should be considered liberated "upon transfer." The department is unsure exactly what the point of the comment might be, but disagrees that the distinction between liberation and captivity has or should have any bearing upon disease-management strategies, primarily because such distinctions are irrelevant with respect to disease status. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the rules are difficult to enforce and have resulted in unjust actions. The department disagrees with the comment and responds that the department is confident the rules as adopted can be enforced by department law enforcement personnel and that the accusation that the rules have resulted in unjust actions is impossible, as the rules as adopted have yet to take effect. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the rules lack inclusion of basic due process and do not provide an opportunity to contest "unchecked decisions" by department staff. The commenter specifically identified proposed §65.99(i) and stated that the provision's requirement for a deer breeder where CWD has been confirmed to either sign a TPWD/TAHC herd plan or depopulate the facility does not include an opportunity for the permittee to contest the outcome. The commenter further states opposition to conditions imposed under department herd plans, contending that signing a herd plan is tantamount to surrendering control of the facility to agency staff. The commenter stated that the rules should grant permittees the right to an administrative hearing before the State Office of Administrative Hearings (SOAH) and allow the commission to decide the final outcome of contested cases "as is done every day in every agency in Texas." The department disagrees with the comment and responds that department rules are promulgated in compliance with all applicable provisions of the Texas Administrative Procedure Act and no employee or officer of the department enjoys or exercises "unchecked" or extralegal decision-making authority. The department further responds that native deer species are the property of the people of the state, even when in possession of a permittee under the privileges granted under a deer breeding permit. Repeated litigation on the issue has affirmed the department's rules governing deer breeding are not violative of any due process rights. The department further notes that under Parks and Wildlife Code, Chapter 43, Subchapter L, the department may depopulate a deer breeding facility upon finding that the facility is a threat to other deer, and that when CWD is confirmed in a breeding facility, that facility is immediately prohibited by existing rule from receiving or transferring deer unless explicitly authorized to do so in a herd plan. A permittee's refusal to sign a herd plan is completely voluntary. No changes were made as a result of the comment.

The department received 248 comments supporting adoption of the rules as proposed.

No groups or associations commented in opposition to adoption of the rules as proposed.

State Senator Bob Hall, State Representative Richard Curry, State Representative Wes Virdell, State Representative Richard Raymond, State Representative Carrie Isaac, State Representative Stan Gerdes and Commissioner of Agriculture Sid Miller commented in opposition to adoption of the rules as proposed.

State Representative Drew Darby commented in support of adoption of the rules as proposed.

The Texas Deer Association, The Texas Wildlife Association, the Texas and Southwest Cattle Raisers Association, the Texas Chapter of The Wildlife Society, the Texas Nature Conservancy, the Texas Foundation for Conservation, the Texas Conservation Alliance, and the Boone and Crockett Club commented in support of adoption of the rules.

SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

SUBCHAPTER T. DEER BREEDER PERMITS

The amendments are adopted 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.

§ 65.605. Facility Standards and Care of Deer.

(a) Except as provided in subsection (h) of this section, the entire perimeter of a permitted deer breeding facility, including medical facilities, shall be within a fence of no less than seven feet in height, which 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:

(1) the edifice, structure, building, working facility, barn, or similar infrastructure used to temporarily handle the animals; and

(2) travel corridors, alleyways, or other access avenues to and from edifice, structure, building, working facility, barn, or similar infrastructure used to temporarily handle the animals.

(3) 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, if a breeding facility permitted after the effective date of this subsection is not designed in such a fashion as to provide access to handling infrastructure that is external to the breeding facility, the use of such handling infrastructure for non-susceptible species is prohibited.

(h) An edifice, structure, building, working facility, barn, or similar infrastructure that is or is to be used or occupied by non-susceptible animals as well as the breeder deer reflected on the herd inventory for that facility 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), (g), (h), 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) A permittee shall ensure that deer have access to adequate food, a continuous supply of water, and ample cover or shelter.

(m) 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) If a permit holder is unable to recapture escaped breeder deer reported as provided under subsection (m) 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.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 24, 2025.

TRD-202500996

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: April 13, 2025

Proposal publication date: December 20, 2024

For further information, please call: (512) 389-4775