PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 65. WILDLIFE

The Texas Parks and Wildlife Commission in a duly noticed meeting on November 2, 2023, adopted amendments to 31 TAC §§65.91, 65.92, 65.95, 65.97, and 65.98, concerning Disease Detection and Response, and 65.605, 65.608, and 65.611, concerning Deer Breeder Permits. Sections 65.95, 65.98, 65.608, and 65.611 are adopted with changes to the proposed text as published in the September 29, 2023, issue of the Texas Register (48 TexReg 5626) and will be republished. Sections 65.91, 65.92, 65.97, and 65.605 are adopted without change to the proposed text and will not be republished.

The change to §65.95, concerning Movement of Breeder Deer, removes proposed subsection (b)(1)(C). The provision would have established a six-month residency requirement for breeder deer as a condition for eventual transfer to another breeding facility or release facility. The commission during its deliberations determined that further investigation of residency requirements is necessary. The change also alters proposed subsection (d)(2)(A) to increase the number of days allowed for landowners of trace-out release sites to submit test samples, from one day to seven days following mortality of trace deer. The commission during its deliberations considered that one day was an insufficient amount of time for persons to reasonably dispatch a trace deer, collect a test sample, and submit it. Finally, the change eliminates proposed new subsection (f), which would have prohibited the release of breeder deer prior to April 1 of the year following the year in which the breeder deer was born. The provision was intended to function in concert with a proposed amendment to §65.611 to eliminate the possibility of breeder deer being released without permanent identification. The commission voted to table provisions related to permanent identification; therefore, the provision is being removed.

The change to §65.98, concerning Transition Provisions, alters subsection (b) as proposed to remove provisions that mirror the provisions of current §65.99(e), concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities. The commission was persuaded, based on public comment, that confusion as to the rationale for reproducing current language in the proposed amendment could be avoided simply by referencing the contents of current §65.99(c) and providing for the resolution of any conflict between the sections by making the provisions of subsection (c) as adopted take precedence.

The change to §65.608, concerning Annual Reports and Records, eliminates an unnecessary comma in subsection (b). The change is nonsubstantive.

The change to §65.611, concerning Prohibited Acts, removes proposed new subsections (l) and (m), which reproduced the provisions of Parks and Wildlife Code, §43.3561, and provided for a defense to prosecution for persons who remove ear tags from deer following lawful hunting. As noted earlier in this preamble in the discussion of the changes to §65.95, the commission decided to table actions regarding the permanent identification of breeder deer.

The rules as adopted will function collectively to refine surveillance efforts as part of the agency's effort to manage chronic wasting disease (CWD).

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

Much remains unknown about CWD, although robust efforts to increase knowledge are underway in many states and countries. 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. Currently, scientific evidence suggests that CWD has zoonotic potential; however, no confirmed cases of CWD have been found in humans. Consequently, both the Centers for Disease Control and Prevention and the World Health Organization strongly recommend testing animals taken in areas where CWD exists, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to certain species of cervids and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant.

The department has engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD has been confirmed. The purpose of those CWD zones is to determine the geographic extent and prevalence of the disease while containing it by limiting the unnatural movement of live CWD-susceptible species as well as the movement of carcass parts.

The department's response to the emergence of CWD in captive and free-ranging populations is guided by the department's CWD Management Plan (Plan) https://tpwd.texas.gov/huntwild/wild/diseases/cwd/plan.phtml. Developed in 2012 in consultation with the Texas Animal Health Commission (TAHC), other governmental entities and conservation organizations, and various advisory groups consisting of landowners, hunters, deer managers, veterinarians, and epidemiologists, the Plan sets forth the department's CWD management strategies and informs regulatory responses to the detection of the disease in captive and free-ranging cervid populations in the state of Texas. The Plan is intended to be dynamic; in fact, it must be so in order to accommodate the growing understanding of the etiology, pathology, and epidemiology of the disease and the potential management pathways that emerge as it becomes better understood through time. The Plan proceeds from the premise that disease surveillance and active management of CWD once it is detected are critical to containing it on the landscape.

As noted previously in this preamble, the department has been engaged in a long-term effort to stem the spread of CWD; however, by 2021 it was apparent that more robust measures were warranted because CWD was still being detected in additional deer breeding facilities, as well as on multiple release sites associated with CWD-positive deer breeding facilities. The commission adopted those rules, which require higher rates of testing, ante-mortem (live-animal) testing of breeder deer prior to release, and enhanced recordkeeping and reporting measures, in December of 2021 (46 TexReg 8724).

The last nine months have seen an unprecedented increase in CWD detections, which is directly attributable to the regulatory actions taken in December 2021 to tighten and refine the agency's CWD surveillance measures. Since that time, CWD has been detected in an additional 15 deer breeding facilities, three release sites associated with CWD-positive deer breeding facilities, the Kerr Wildlife Management Deer Research facility, and two free-ranging deer in new areas where CWD had not been previously detected. Department records indicate that within the last five years those breeding facilities transferred over 4,500 unique deer to other breeding facilities, release sites, and Deer Management Permit (DMP) sites. All those locations are therefore directly connected to the CWD-positive facilities and are subsequently of epidemiological concern. Additionally, 287 deer breeding facilities received deer from one or more of the directly connected breeding facilities, which means those facilities (referred to as "Tier 1" facilities) are indirectly connected to the positive facilities and are also of epidemiological concern because they have received exposed deer that were in a trace-out breeding facility.

The amendment to §65.91, concerning General Provisions, eliminates an exception for nursery facilities. The rules as adopted eliminate the practice of moving breeder deer from deer breeding facilities to external facilities for nursing purposes and the amendment is therefore necessary to eliminate all provisions relating to that practice.

The amendment to §65.92, concerning CWD Testing, conforms an internal citation in subsection (b) of that section to comport it with the provisions of the amendment to §65.95, concerning Movement of Breeder Deer.

The amendment to §65.95, concerning Movement of Breeder Deer, alters the section to provide an internal reference, remove provisions applicable to nursery facilities, implements provisions regarding the testing of breeder deer being transferred between breeding facilities, removes an internal three-year limitation on the effectiveness of provisions governing the release of breeder deer, strengthens provisions governing the obligations of release-site owners in the event that a release site is epidemiologically linked by trace-out to a positive breeding facility, and provides for the suspension of participation in Managed Lands Deer Program activities for landowners who fail to comply with provisions applicable to trace-out release sites.

Current rules require a breeder deer to be the subject of an ante-mortem test (a live-animal test) before it can be transferred elsewhere for purposes of release. The amendment expands this requirement to include transfers between deer breeding facilities. The department has determined that in light of the spate of recent detections of CWD in multiple deer breeding facilities, it is not only prudent, but imperative to require all breeder deer to be tested as a condition of authorizing transfer between deer breeding facilities, which is intended to impose a testing protocol capable of providing an acceptable probability of detecting CWD if it exists in any given breeding facility and possibly preventing the transfer of CWD positive deer.

For similar reasons, the amendment eliminates the practice of transferring fawn deer from deer breeding facilities to external facilities for nursing purposes. The practice was considered to be an acceptable risk prior to the emergence of CWD; however, given the steady and increasing discoveries of CWD in deer breeding facilities across the state, the department has determined that the practice should be stopped.

The amendment also imposes new requirements for release sites that are epidemiologically connected to deer breeding facilities where CWD has been detected. Under current rule, the landowner of a release site that is epidemiologically connected to a positive deer breeding facility is required to test either 100 percent of all hunter-harvested deer at the release site property or one hunter-harvested deer per released deer (if authorized by a herd plan), whichever value is greater. Release site owners are also required by rule to maintain a harvest log. The department has determined that regulatory compliance at release sites has been problematic, as some release site owners have failed to conduct the required testing or maintain harvest logs as required. Although the department prohibits additional releases of deer at such sites unless approved by a herd plan, the epidemiological value of the animals at a trace-out release site is significant. The recent detections mark a dramatic increase in number and distribution of CWD-positive facilities across the state since 2020. Records indicate 367 trace release sites have received deer from these positive facilities and are of epidemiological concern. Although the owners of trace release sites are provided herd plans and placed under a hold order, herd plans do not require harvest on that property, only that if a deer is harvested a CWD sample must be collected and tested. The lack of harvest leaves the department in a precarious situation to mitigate potential spread of CWD to areas where the disease is currently undetected. Timely removal of trace animals is critically important for CWD management. Therefore, the department has determined that it is necessary to require all trace deer at trace-out release sites to be removed and tested within 60 days of notification by the department that the site has been confirmed as a trace-out release site. In addition, the amendment eliminates the current provision providing an alternative to 100 percent testing of hunter-harvested deer on trace-out release sites and instead requires testing of all hunter-harvested deer until the number and distribution of samples is sufficient to provide statistical confidence that if CWD were present at a certain prevalence on the release site, it would be detected. The amendment enhances the department's ability to more quickly assess whether exposed deer transferred from CWD-positive deer breeding facilities have spread CWD to trace-out release sites.

The amendment also eliminates current subsection (c)(6)(E), which imposed a three-year period of effectiveness for the provisions of paragraph (6). In a rulemaking in 2021 (46 TexReg 8724), the commission imposed a three-year period of effectiveness for ante-mortem testing of breeder deer prior to release, with the understanding that should continuation of the requirement be determined to be necessary, that decision would be made as needed in the future. As noted previously in this preamble, there has been an unprecedented significant increase in the detection of CWD within deer breeding facilities as well as release sites associated with deer breeding facilities recently, which not only necessitates the continuation of the provisions of paragraph (6), but to do so indefinitely.

Additionally, the amendment provides that the owner of a release site that is not in compliance with the applicable provisions of Chapter 65, Subchapter B, Division 2, is ineligible for enrollment or continued participation in the Managed Lands Deer Program (MLDP) under Chapter 65, Subchapter A. The MLDP is a conservation program that offers special privileges to participants in exchange for conducting beneficial management actions. The department reasons that the owner of a trace-out release site who is unwilling to comply with CWD management provisions should not be afforded the privilege of participation in the program.

Finally, the amendment does not include a proposed provision to prohibit the release of breeder deer prior to April 1 of the year following the year in which the breeder deer is born. As noted previously in this preamble, the commission decided to table all proposed provisions regarding the removal of required permanent identification of breeder deer.

The amendment to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, requires tissue samples collected for the issuance of a TTP (Trap, Transfer, and Process) permit to be submitted within seven days of collection. One of the recent detections of CWD occurred in a deer that was trapped in Bexar County under the provisions of a TTP permit. The TTP permit is used to remove surplus deer in situations in which hunting is impractical or unfeasible, such as in urban areas where discharge of firearms is prohibited. Typically, a TTP permit allows trapping activities between October 1 and March 31, and current rules require CWD test results to be submitted by May 1 following completion of permitted activities; however, there are no requirements on how quickly those CWD samples must be submitted to the lab for testing. The department has determined that in light of the detection of CWD in TTP deer, it is necessary to require tissue samples to be submitted within seven days of collection, which will provide for quicker department response in the event of detection.

The amendment to §65.98, concerning Transition Provisions, alters the timeframes for tissue sample collection at deer breeding facilities designated by the department as Category B facilities (facilities in which not all deer of epidemiological concern are available). Effective epidemiological investigations depend on specificity of time and place. Trace herds should be evaluated in a timely fashion, and, historically, whole-herd testing requirements have been inconsistent with the timeliness of testing. Furthermore, some breeding facilities in which the date of last known exposure occurred within the 18 months prior to epidemiological connection have either not conducted tests or not submitted test results. The amendment creates a more efficacious timeline (60 days) for compliance with collection and submission of required ante-mortem testing samples for Category B breeding facilities, which is necessary to clear epidemiologically linked herds in a timelier fashion. In addition, the amendment causes the provisions of §65.99(i), which apply to nursing facilities, to cease effect for reasons discussed elsewhere in this preamble.

The amendments to §65.605, concerning Holding Facility Standards and Care of Deer, and §65.608, concerning Annual Reports and Records, remove references to nursing facilities for reasons discussed elsewhere in this preamble.

The amendment to §65.611, concerning Prohibited Acts, removes provisions applicable to nursing facilities for reasons discussed elsewhere in this preamble and corrects an error in citation style in current subsection (j). The rule as adopted does not include proposed provisions to prohibit the removal of identification tags on breeder deer except as specifically authorized by statute, for reasons discussed earlier in this preamble.

The department received 2,772 opposing adoption of the rules as proposed. Of those comments, 311 articulated a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response, follow. The department notes that many comments addressed multiple provisions or contained many reasons for opposition; therefore, the department has organized this response in an itemized fashion. Therefore, the number of department responses is greater than the total number of comments.

One-hundred thirty-seven commenters opposed adoption of the rules as proposed and stated displeasure with the rules, describing them, variously, as onerous, overkill, out of control, excessive regulation, government overreach, witch hunt, or some other similar descriptive language meant to illustrate the department's actions as being egregious and unnecessary. The department disagrees with the comments and responds that CWD continues to be detected in deer breeding facilities and release sites associated with breeding facilities across the state; additional testing requirements for deer being transferred between deer breeders are necessary, as well as measures 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. The department believes the rules as adopted are sensible, appropriate, and reasonable. No changes were made as a result of the comments.

Fifty-six commenters opposed adoption of the rules as proposed and stated that the rules are reflective or representative of a pre-existing condition of department antipathy towards deer breeders, describing the rules as discriminatory, bullying, crippling, "war on breeders," trying to put breeders out of business, punishing breeders, and other unflattering adjectives and phrases with negative connotations. The department disagrees with the comments and responds that the rules as adopted are not and are not intended to be punitive or as a demonstration of wanton disregard 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 apparently increasing threat of CWD in captive breeding facilities and to do so in a manner that is conscientious and respectful of the interests of the regulated community. No changes were made as a result of the comments.

Thirty-nine commenters opposed adoption and stated that the rules will harm, kill, destroy, or otherwise negatively impact deer hunting or the "white tail industry," and 41 commenters stated in various ways that the rules hurt small businesses, the hunting industry, businesses associated with the hunting industry, the state economy, and local economies, and other general assertions of financial hardship or harm. The department disagrees with the comments and responds that the rules as adopted do not directly regulate any person 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"), imposing testing requirements as a condition for the transfer of breeder deer between deer breeders and at release sites that become epidemiologically linked to positive deer breeding facilities ("trace-out release site"). The department notes that captive-bred deer represent an extremely small percentage (less than five 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 hunting and to the regulated community itself will be significant. No changes were made as a result of the comments.

Thirty-eight commenters opposed adoption of the rules as proposed and expressed some sort of doubt with respect to the threat or even 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, is a scam, or some other, similar expression of 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 much is unknown about CWD there is no scientific debate as to whether it is real, that it is without question invariably fatal, and that the disease can have population level effects. Further, the absence of large-scale die-offs isn't an appropriate metric because CWD can take years to reach a high prevalence in free-ranging deer populations, at which point it becomes impossible to eradicate. The department's management efforts are intended to prevent this outcome from occurring. No changes were made as a result of the comments.

Thirty commenters opposed adoption of the rules as proposed and stated in some form or fashion that the department and commission are engaging in a 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 that not only is there no merit whatsoever to the accusation, it is difficult to conceive that, given the extremely small percentage of breeder deer in the deer population or the total harvest, 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.

Twenty-seven 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 the best available science. No changes were made as a result of the comments.

Twenty-three commenters opposed adoption of the rules as proposed and stated the rules constituted a violation of private property rights and were unfair to property owners. The department disagrees with the comments and responds that the rules do not affect private property rights in any way. No changes were made as a result of the comments.

Eighteen commenters opposed adoption of the rules as proposed and stated that they are unnecessary because the current rules are working. The department disagrees with the comment and responds that through slow but steady improvements in the department's rules over the last five years, the department's ability to expeditiously and reliably detect the disease has increased; however, the continued detection and transfer of CWD positive animals within and between deer breeding facilities and release sites associated with such facilities indicate a continuing need for improvement and adaptive management of the disease. No changes were made as a result of the comments.

Eighteen commenters 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.

Seventeen commenters opposed adoption of the rules as proposed and made vague accusations of monetary gain providing the incentive for the rules ("follow the money," "it's all about the money," "just a money grab"). The department disagrees with the comments and responds that such allegations are unjustified. The department operates within a budget that is appropriated by the legislature, with numerous oversight features designed to prevent and detect misuse of public funds. In addition, agency revenues and expenditures are a matter of public record, available for inspection at any time. No changes were made as a result of the comments.

Seventeen commenters opposed adoption of the rules as proposed and stated that the commission is corrupt. The department disagrees with the comments and responds that such accusations are untrue. No changes were made as a result of the comments.

Sixteen commenters opposed adoption of the rules as proposed on the basis that the department and the commission are engaging in a smear campaign, propaganda, fear-mongering, or scare tactics to influence the general public. The department disagrees that the rules as proposed or adopted are based on anything less than valid science, the facts, and the department's statutory duty to protect and conserve the state's wildlife resources. No changes were made as a result of the comments.

Sixteen 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 with the comments and responds that certain spongiform encephalopathies (the family of diseases including CWD) are known to have become interspecifically transmissible, including spillover to humans. Recent research suggests that CWD may have zoonotic potential and the Centers for Disease Control as well as the World Health Organization recommend that humans avoid consumption of CWD-positive animals. In any case, the rules as adopted are intended to address the management of CWD in deer populations; the protection of human health and safety is an ancillary benefit. No changes were made as a result of the comments.

Fourteen commenters opposed adoption of the rules as proposed and stated displeasure with provisions repeating statutory language regarding permanent, visible identification on breeder deer at release sites. The department disagrees with the comments and responds that by statute, the required ear tags cannot be removed except to replace a damaged ear tag. Nevertheless, the commission has directed the removal of language regarding permanent identification from the rules as adopted.

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 disagrees with the comments and responds that 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) and Lubbock (one free-ranging positive) for at least two hunting seasons following the timely, intensive efforts to remove native deer. 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.

Thirteen commenters opposed adoption of the rules as proposed because the rules do not require all hunter-harvested deer to be tested/do not require testing of free-range deer at the same rate as breeder deer. The department disagrees with the comments and responds that because the department has implemented a statewide risk-based surveillance strategy, it is unnecessary to require the testing of all hunter-harvested deer. Captive populations (of any organism, and especially those that can be relocated in ways other than natural movement or dispersion) and free-ranging populations (of that organism) with limited natural ranges of movement present entirely different disease management realities that cannot be conflated or compared. The rules as adopted implement demonstrably necessary and scientifically defensible measures to reduce the likelihood of disease transmission between deer breeding facilities and release sites. No changes were made as a result of the comments.

Eleven commenters opposed adoption of the rules as proposed and stated that in various ways that the department's surveillance efforts with respect to free-ranging populations are intentionally inadequate or insufficient because the department does not want to acknowledge the existence or prevalence of CWD in free-ranging populations, which would prove the department's animus towards deer breeders and defeat the premise that CWD surveillance in breeding facilities is necessary. The department disagrees with the comments and responds that such assertions are objectively false, as is the inference that deer breeders are being unfairly regulated. No changes were made as a result of the comments.

Eleven commenters opposed adoption of the rules as proposed and stated that EHD (Epizootic Hemorrhagic Disease) is a bigger threat than CWD and the department doesn't do/isn't doing anything about it. The department disagrees with the comment and responds that EHD and CWD are completely different diseases with different transmission pathways. EHD is spread via insects, which the department has no ability to control, while a known major pathway for spread of CWD is the transfer of infected deer by unnatural means (such as haulage), which the department does have the ability to influence in a way that mitigates disease transmission risk. 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 can be demonstrated to affect property values. No changes were made as a result of the comments.

Ten commenters opposed adoption of the rules as proposed and stated that one day is not enough for test sample submission from release sites epidemiologically linked to positive breeding facilities. The department agrees with the comment and has made changes accordingly.

Nine commenters opposed adoption of the rules as proposed and stated that the rules are unnecessary because deer breeders are breeding CWD out of deer, and six commenters stated that the department should be working with breeders in that effort. The department disagrees with the comments and responds that CWD continues to be detected in deer breeding facilities and at the present time there is no indication that there are breeder deer incapable of contracting CWD; thus, it is imperative to use the tools available now to try to slow or stop the spread of CWD instead of waiting for techniques that have yet to be developed or proven. The department also notes that it is funding research projects to investigate genetic approaches to combating CWD. No changes were made as a result of the comments.

Nine commenters opposed adoption of the rules as proposed and stated that deer breeders already test every deer. The department disagrees with the comments and responds that because some deer breeders were unable for whatever reason to comply with rules requiring 100 percent of deer mortalities occurring within the facility to be tested (post-mortem testing is considered to be the definitive standard), the department implemented rules allowing ante-mortem testing at sufficient intensity to substitute for missing mortalities. Nevertheless, breeder deer are not currently tested frequently enough with respect to the volume and frequency at which breeder deer are transferred between deer breeders on even a monthly basis. In fact, the rules as adopted are not ideal in this regard and represent a minimum standard for achieving confidence that CWD is not being spread. The department has repeatedly explained that ante-mortem testing is less reliable at ascertaining whether an individual animal is truly uninfected with CWD, but it has significant value as a screening test for ascertaining the CWD status of a herd. No changes were made as a result of the comments.

Nine commenters opposed adoption of the rules as proposed and stated that CWD is scrapie and therefore no response is warranted. Thirteen commenters opposed adoption of the rules as proposed and stated in some form or fashion that CWD is the same thing as scrapie and indicated that this should alter the department's approach to CWD management. The department disagrees with the comments and responds that CWD is a cervid disease that is without question related to scrapie, a similar disease found in sheep, but in any case, this distinction is irrelevant in the context of disease surveillance, response, and management actions as scrapie is itself another disease justifying state and federal regulatory action, including depopulation of flocks infected with scrapie. No changes were made as a result of the comments.

Eight commenters opposed adoption of the rules as proposed and stated that the rules are unnecessary because CWD can be spread in many ways and deer are far more likely to die from other causes anyway. The department disagrees with the comments and responds that CWD is an existential threat to captive and free-ranging deer populations and although CWD can be spread in many ways, the majority of CWD detections thus far have occurred in deer breeding facilities, increasing the probability of spreading the disease by the movement of breeder deer through human agency. Regardless of how CWD spreads, the department has an obligation to mitigate the spread of the disease and manage the disease through appropriate regulations. The department also notes that a deer infected by CWD is highly likely to die from some other cause because of the debilitating, disorienting nature of the disease. No changes were made as a result of the comments.

Eight commenters opposed adoption of the rules as proposed and stated that the commission doesn't or likely doesn't consider public comment. The department disagrees with the comments and responds that each commissioner received a verbatim copy of all public comments. Additionally, staff provided a summary of public comment at the time of the commission meeting, which included a synopsis of the content of public comment. No changes were made as a result of the comments.

Seven commenters opposed adoption and stated that the legislature is the appropriate body to manage CWD response and regulate deer breeders, eight commenters opposed adoption and stated that regulation should be left up to local officials, three commenters opposed adoption and stated that the department is engaging in extra-legislative action, and three commenters opposed adoption and stated that the rules should be subject to a vote by the public. The department disagrees with the comments and responds that the legislature has delegated to the Parks and Wildlife Commission the authority to promulgate rules governing white-tailed deer held in captivity by persons with a deer breeders permit, that local officials do not enjoy that authority, and that under the Administrative Procedure Act, department rules are implemented by vote of the Parks and Wildlife Commission after the opportunity is provided for public comment, as provided by statute. No changes were made as a result of the comments.

Six 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. 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.

Six 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; therefore, the department is reluctant to prohibit the movement of all deer by haulage. 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 or a violation of constitutional rights. The department disagrees with the comments and responds that the rules are not violative of any provision of the state or federal constitutions. No changes were made as a result of the comments.

Six commenters opposed adoption of the rules as proposed and stated that the rules hurt, are unfair to, or put high-fence ranches out of business. The department disagrees with the comments and responds that the rules as adopted do not affect the presence, absence, or dimensions of any fence erected by any landowner. If the comments refer to negative impacts resulting from epidemiological linkage of release sites to positive deer breeding facilities, the department responds that it is a landowner's decision to release breeder deer on their property and the department's rules are clear as to what a release site owner's obligations are in the event that a property becomes epidemiologically connected to a positive facility. No changes were made as a result of the comments.

Five commenters opposed adoption of the rules as proposed and stated that the rules "give too much authority to the department." The department disagrees that the rules give any authority to the department. The department's authority is derived from the legislature as codified in the Parks and Wildlife Code, and the rules as adopted are within that authority. No changes were made as a result of the comments.

Five 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 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 comparative positivity and prevalence rates in captive versus free-ranging populations is of little value in the context of the rules as adopted. CWD is and has been spread via the transfer of breeder deer to other locations. The rules as adopted address that fact. No changes were made as a result of the comments.

Five commenters opposed adoption of the rules as proposed and stated that the department should not be or has no business being involved in animal health issues, which should be left to TAHC. Another commenter stated that the department is not a disease control authority. The department disagrees with the comments and responds that the department has a statutory duty to conserve wildlife populations and with respect to breeder deer, a statutory duty to ensure that only deer in a healthy condition are sold by deer breeders. Additionally, TAHC has authority to regulate diseases that affect livestock and wildlife populations; thus, the department and TAHC are in a partnership to protect both livestock and wildlife from CWD. No changes were made as a result of the comments.

Five commenters opposed adoption of the rules as proposed, stating displeasure with management zones and offering suggested alternatives. The department disagrees that CWD zone designations were the subject of the rules as proposed or adopted; therefore, the comments are not germane to the rules as proposed or adopted. 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, for 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.

Four commenters opposed adoption of the rules as proposed and stated that there is no scientific support for the proposed residency requirements and the rules do not consider the transfer of breeder deer between facilities under common ownership on one tract of land. The department, while disagreeing that the proposed residency requirements are not scientifically defensible or appropriate, agrees that further refinement of such requirements is warranted, and has made changes accordingly.

Four commenters opposed adoption of the rules as proposed and stated that deer breeders are the solution to CWD because "they do more and test more." The department disagrees with the comments and responds that the task of constraining CWD and preventing its spread presents challenges to everyone involved, from deer breeders to land managers to hunters to scientists and ultimately, to every citizen. No changes were made as a result of the comments.

Four commenters opposed adoption of the rules as proposed and stated because CWD can be acquired by deer in a variety of ways, deer breeders cannot be blamed. The department disagrees with the comment and responds that the rules as adopted do not and are not intended to constitute blame or imply culpability for anything; they are intended to curb and if possible stop the spread of CWD to additional deer populations. It cannot be refuted that a pathway for CWD transmission in Texas is via the movement of captive cervids. No changes were made as a result of the comments.

Four commenters opposed adoption of the rules as proposed and stated either that breeder deer are not the property of the state or that breeder deer are private property and the department does not possesses the authority to regulate their possession. The department disagrees with the comments and responds that all white-tailed deer are the property of the people of the state by statute and the Texas Constitution, which has been affirmed on more than one occasion by courts at various levels, including the Texas Supreme Court. The department further responds that Parks and Wildlife Code, Chapter 43, expressly requires the department to regulate the possession of breeder deer held under a deer breeders permit. 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 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. Nonetheless, the topic of depopulation activities 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 the department's motivation was simply to obtain money from the federal government. The department disagrees with the comment and responds that the only incentive affecting the department is the desire to protect wildlife resources for the enjoyment of present and future generations, and, further, that federal funds for CWD management in Texas are a negligible proportion of the department's budget for wildlife resource management. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated that the department has no statutory authority to require tags for free-ranging deer. The department disagrees with the comment and responds that the commission has the authority to require identification of deer held in possession under a variety of permits, and to require that identification to remain with the deer following release. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated that the provisions requiring permanent visible identification to remain with breeder deer following release was onerous because hunters don't want to shoot deer with a tag in its ear. The department disagrees with the comments and responds that although identification of deer formerly held under a deer breeder's permit is critical for the quick location of trace deer in the event that a release site becomes epidemiologically linked to a positive deer breeding facility, the commission voted to table provisions related to permanent identification and directed the removal of language regarding permanent identification from the rules as adopted.

Three commenters opposed adoption and stated that the rules relating to trace deer at release sites were not fair because breeder deer are tested prior to release. The department disagrees with the comment and responds that because of the intricate connectivity of breeding facilities, the long incubation time before CWD is detectable, and the fact that ante-mortem testing should not be understood to be a way to definitively clear individual animals, when CWD is detected in a captive population that was the source for released deer, it is necessary to quickly locate, dispatch, and test the released deer to gain a definitive understanding of the disease status at the release site. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed and stated that the rules are not valid because the commission isn't elected. The department disagrees with the comments and responds that the commission is appointed by the Governor in compliance with the applicable provisions of the Texas Constitution and applicable statutory law and the rules were validly promulgated. No changes were made as a result of the comments.

Three commenters opposed adoption of the rules as proposed on the basis that breeders "test exponentially more deer." The department disagrees with the comments for the reasons stated in an earlier discussion of why testing protocols for captive deer are different from routine monitoring protocols for 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 on a small number of permit holders and enhances 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.

Two commenters opposed adoption of the rules as proposed because of the removal of the "sunset" provision requiring ante-mortem CWD testing of breeder deer prior to transfer to release sites. The department disagrees with the comment and responds that the continued detection of CWD at breeding facilities and associate release sites warrants the continued screening of breeder deer prior to transfer to release sites. No changes were made as a result of the comments.

Two commenters opposed adoption of the rules as proposed and disagreed with the 60-day time period within which trace deer must be removed from a trace-out release site. One commenter stated that each release site presents a unique combination of size, habitat, hunting frequency and pressure, and elapsed time since the release of breeder deer. The commenter also stated that the proposed provision is unconstitutional and grossly subjective. The department disagrees with the commenters and responds that it is up to the individual landowner to be aware of and consider the matrix of possibilities with respect to CWD rules and the current epidemiological reality of CWD in Texas when purchasing breeder deer for release. No changes were made as a result of the comments.

Two commenters opposed adoption of the rules as proposed on the basis that the department does not have an epidemiologist on staff. While the department does have an epidemiologist on staff, the department disagrees that an epidemiologist must be on staff as a condition of rulemaking. The department notes that it works closely with and utilizes the expertise of epidemiologists and wildlife disease specialists at a number of state and federal entities, universities, and the department's CWD Task Force, and is confident that the disease management protocols represent the best available science. No changes were made as a result of the comments.

Two commenters opposed adoption of the rules as proposed on the basis that disease surveillance efforts in free-range populations are not adequate or insufficient, which indicates that the department is not interested in determining disease prevalence in populations other than captive populations and is afraid to acknowledge that CWD is in fact widespread in free-ranging populations. The department disagrees with the comments and responds, as noted in discussions elsewhere in this preamble, that surveillance of free-ranging populations is in fact sufficient for the department to conclude that CWD would be more broadly detected in free-ranging populations if it were widespread. No changes were made as a result of the comments.

One commenter opposed adoption of the rules as proposed and stated that deer don't live long enough for CWD to kill them. The department disagrees with the comment and responds that there is abundant evidence that deer die from CWD. In addition, deer infected with CWD are four times more likely to die from other causes than deer that are not infected with CWD. 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 proof that breeder deer are the problem. The department disagrees with the comment and responds that the problem at hand is CWD and there is no question that it has been spread by the transfer of captive cervids. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that CWD originated in wild deer and did not come from farmed deer. The department neither agrees nor disagrees with the comment and responds that neither the threat posed by CWD nor the department's response to that threat are reliant upon a specific determination of pathogenesis; however, the movement of deer by humans via vehicles is a significant factor in the spread of CWD in captive cervid populations in Texas and elsewhere. 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 evidence that CWD is spread by deer breeders. The department disagrees with the comment and responds that numerous epidemiological investigations have conclusively shown that CWD has been spread by the movement of captive cervids in Texas. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that predators and scavengers spread CWD more than deer breeders. The department neither agrees nor disagrees with the comment and responds that the rules as adopted impose additional testing measures for deer breeders who transfer deer to other breeders and imposes enhanced surveillance measures at trace-out release sites because the department has determined that CWD is and has been spread by the transfer of breeder deer. The department also notes that the spread of CWD by predators and scavengers is a natural process that cannot be regulated. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed as being "anti-hunting." The department disagrees with the comment and responds that the department has a statutory duty to protect game species for the enjoyment of the public, which includes the hunting public. If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that helicopter services will be hurt. The department neither agrees nor disagrees with the comment and responds that the rules as adopted do not and are not intended to regulate helicopter services. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules would result in "high cost to ranchers." The department disagrees with the comment and responds that although the commenter did not explain the rationale for the comment, the rules as adopted do not affect landowners other than those who own deer breeding facilities and those who own trace-out release sites. The department has for many years cautioned the public about the dangers of CWD, and the current rules are clear about the obligations of release-site owners in the event that a property is implicated in an epidemiological investigation. The department further notes that the rules are actually intended to benefit landowners by containing and if possible preventing the spread of CWD to additional properties. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "all deer should be tested." By this the department understands the commenter to be referring to the testing of all deer harvested by hunters. The department disagrees with the comment for reasons stated in a response earlier in this preamble regarding surveillance protocols in captive versus free-ranging populations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the "Montage" [sic] for testing in captive deer should be 18 months of age." The department believes the commenter is referring to the minimum age at which a breeder deer becomes eligible for testing. In any case, the rules as proposed and adopted did not contemplate any changes with respect to the age at which breeder deer can be tested; therefore, the comment is not germane to the rulemaking. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the rules will jeopardize food security and food supply. The department disagrees with the comment and responds that there is no apparent connection between the rules as adopted and threats to the food chain, although as noted in a previous response, spongiform encephalopathies can be transmitted interspecifically, so it is prudent to attempt to contain and manage CWD to the greatest extent possible. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the rules would prevent hunters from feeding their families. The department disagrees with the comment and responds that because breeder deer constitute less than five percent of the total deer harvest and nothing in the rules as adopted imposes limitations on any person's ability to hunt deer, there is little chance that families will suffer from a lack of venison as a result of the rules. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the department was engaging in "a propaganda campaign to kill hunting." The department disagrees with the comment and responds that the department is a vigorous advocate for hunters and hunting heritage. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the rules violate the constitutional right to hunt. The department disagrees with the comment and responds the rules do not affect any person's constitutional right to hunt. 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 deer breeders must monitor for CWD because it is a condition of department rules for holding a deer breeding permit. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that deer breeders "test continuously" and "no sick deer get in or out." The department disagrees with the comment and responds that the value of testing frequency by itself is not as valuable as testing frequency as it relates to the number of deer that enter and/or leave a facility, the number of facilities involved, and the transfer volumes of those facilities. The statement that sick deer do not get in or out is objectively not true, because CWD is spreading in the state, and detections are predominantly occurring within captive deer populations. No changes were made as a result of the comments.

One commenter opposed adoption of the rules as proposed because the rules do not require persons who participate in the department's Managed Lands Deer Program (MLDP) to test all deer harvested on MLDP properties. The department disagrees with the comment and responds once again that it is not necessary to require the testing of all hunter-harvested deer. No changes were made as a result of the comment.

One commenter opposed the rules as proposed and stated that they are impossible to enforce. The department disagrees with the comment and responds that it is confident the rules as adopted are enforceable. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed on the basis that the rules apply only to deer, not other farm animals known to carry or that are susceptible to the disease. The department disagrees with the comment and responds that white-tailed deer and mule deer are species of wildlife authorized to be regulated by the department, while livestock, exotic livestock, and domesticated animals are regulated by TAHC. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that "money should be spent on research and testing, not surveillance and monitoring." The department disagrees with the comment and responds that surveillance and monitoring are the practical endpoints of research and testing; it is pointless to do research and develop testing techniques if they are not going to be used. Therefore, the department engages in and funds research, and the fruits of that research then inform surveillance and monitoring protocols. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that technically all rights belong to the landowner. The department neither agrees nor disagrees with the commenter and responds that the intended point of the comment cannot be determined and it does not appear to have any connection to the rules as adopted, unless it is meant to apply to provisions applicable to trace-out release sites, in which case the department's response has been stated elsewhere.

One commenter opposed adoption of the rules as proposed and stated, "If you test enough you will find it." The department neither agrees nor disagrees with the comment and responds that the intended point of the comment cannot be determined. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that "Information was not provided to the public." The department disagrees with the comment and responds the rules were lawfully promulgated in compliance with all requirements regarding timely public notice, were published on the department's website, and were the subject of department press releases. 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 of the rules as proposed and stated that TPWD personnel are spreading CWD. The department understands the comment to be an accusation that the department is intentionally causing CWD to spread, disagrees with the comment, and responds that in the absence of credible evidence to the contrary, the possibility is to be dismissed out of hand. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the state should create a laboratory capable of testing high volumes of samples quickly. The department agrees with the commenter and responds that the Texas A&M Veterinary Medical Diagnostic Laboratory has the capability of testing a high volume of CWD samples. New technologies are being explored and will be implemented as quickly as possible, contingent upon the budgetary realities of the various agencies involved. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed on the basis that the department "uses the wrong test for CWD." The department disagrees with the comment and responds that the department's rules require the use of testing protocols that have been approved by the United States Department of Agriculture, but hastens to add that as new, more efficient, less expensive, or less invasive testing protocols and methodologies are approved, the department will recognize and allow their use. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated "that they should not be adopted as emergency rules." The department disagrees with the commenter and responds that the rules as adopted are not emergency rules, but replace, in part, an identical emergency rule that was adopted with a limited duration as provided by law for instances in which a species regulated by the department faces an immediate threat. The department additionally responds that these rules were proposed and adopted in accordance with all applicable statutes regarding agency rulemaking, including public notice requirements. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that they violate the constitutionally guaranteed right to farm. The department disagrees with the comment and responds that Parks and Wildlife Code, Chapter 43, Subchapter L, requires the department to regulate the possession of deer held under a deer breeder's permit. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed because they did not "address deer overpopulations in million-dollar subdivisions." The department disagrees with the comment and responds that the rules do not contemplate issues of deer overpopulation, but rather impose testing requirements on deer breeders and landowners of trace-out release sites. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that all deer killed under a TTP should be tested before being used as a food source. The department disagrees with the comment insofar as the department does not regulate food safety; nonetheless, the rules as adopted require the timely submission of test results from TTP trap sites, which will function to provide additional surveillance of CWD in free-ranging populations. The department agrees that testing harvested deer for CWD is prudent and that if CWD is detected, consumption of meat from the animal is not recommended. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that "there was no economic impact study." The department disagrees with the comment and responds that the rules were promulgated in compliance with all applicable provisions of the Administrative Procedure Act, including all required economic analyses. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated the department's estimates of the cost of veterinary services was inaccurate because it did not include travel time to and from ranch calls. The department disagrees with the comment and responds that the notice of proposed rulemaking acknowledged the fluidity of prices across the state, based on the variety of practice models and service competition. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the provisions requiring testing of deer at trace-out release sites are problematic because "there is no definitive metric for epidemiological clearance and the testing of trace deer with negative results should clear a release site and absolve the landowner from testing hunter-harvested deer." The commenter stated that the procedure for clearing an epidemiologically linked release site should be the same as that for clearing a trace-out breeding facility that received deer from an index facility, where a facility is cleared if trace-out deer test "negative." The department disagrees that there is "no definitive metric" for a release site to be cleared; in fact, if a trace release site were to receive "not detected" results for every trace deer on the release site, it would be promptly released, exactly like a breeding facility in instances where all trace animals are tested with results of "not detected." The department notes that without some method of quickly locating trace deer on a trace release site, epidemiological clearance becomes difficult. In such situations, a clear, definitive metric of CWD testing is identified in the trace-out release site herd plan, which includes CWD testing of hunter-harvested animals, which is warranted until sufficient confidence that CWD is not present has been attained. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that owners of epidemiologically linked release sites should be given the option to live-test trace deer and quarantine them until test results are obtained. The commenter stated that requiring post-mortem testing of animals that were ante-mortem tested prior to release creates a hardship. The department disagrees with the comment and responds that the proposal does not address ante-mortem testing of free-ranging trace deer on release sites and in any case is not germane to the proposed or adopted rules. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated objections to the provisions requiring the removal and post-mortem testing of trace deer from release sites epidemiologically linked to a positive deer breeding facility or facilities. The commenter stated that the termination of released deer "without regard to contact tracing or further testing is irrational and serves no legitimate public interest" and will result in the loss of thousands of healthy deer and the associated investments by landowners. The department disagrees with the comment and responds that contact tracing is the central component of epidemiological investigation and the quickest and most effective way to clear a release site linked to a positive breeding facility is to remove every trace deer and subject them to post-mortem testing. The department asserts that the rules as adopted serve a significant public interest, which is the protection of free-ranging and captive deer populations from CWD. The department again notes it is up to the individual landowner to be aware of and consider the matrix of possibilities with respect to CWD rules and the current epidemiological reality of CWD in Texas when purchasing breeder deer for release. 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. No changes were made as a result of the comment.

The department received a form letter from 179 individuals expressing opposition to adoption of the rules as proposed. The commenters stated that current rules are working as intended, implying but not explicitly stating that the rules as proposed are not warranted. The department disagrees with the comments and responds that through slow but steady improvements in the department's rules over the last five years, the likelihood of expeditiously and reliably detecting CWD in captive deer populations before it can be spread has increased; however, the continued detection of positives in additional deer breeding facilities and release sites associated with such facilities indicate a continuing need for improvement. No changes were made as a result of the comments. The commenters stated opposition to proposed provisions regarding permanent identification of breeder deer upon release. The department disagrees with the comments and responds that by statute, the required ear tags cannot be removed except to replace a damaged ear tag. Nevertheless, the commission has directed the removal of language regarding permanent identification from the rules as adopted. The commenters stated that the matter of permanent identification is "clearly" a matter for the Texas Legislature to address and that the department has not requested or been granted the authority to regulate the identification of free-ranging deer. The department disagrees with the comment and responds that Parks and Wildlife Code, Chapter 43, Subchapter L, clearly and explicitly requires breeder deer to be identified with an ear tag by March 31 of the year following birth and clearly and explicitly provides one and only one condition under which the ear tags may be removed, which is to replace an ear tag that does not comply with the requirements. The department further responds it is unnecessary to seek legislative approval to enforce the statute as written, and that in any case, the provision in question does not require permanent identification of free-ranging deer, but the permanent identification of breeder deer, as breeder deer do not become free-ranging deer until they are no longer in possession of the deer breeder, who is also the only person authorized to attach or remove ear tags in accordance with law. The commission has directed staff to remove the proposed provisions, but as noted previously in this preamble, the statutory bar to removal of the ear tags remains. The commenters also state opposition to the proposed residency requirement for deer prior to being transferred elsewhere and stated that the department "failed to articulate a scientific need for the requirement." The department disagrees with the comments and responds that the department has repeatedly explained the scientific basis and need for the provision in question, which is to create a mechanism to reduce the number of breeding facilities and release sites made vulnerable to CWD because of the high frequency with which deer are transferred between breeders, which makes it possible for an exposed deer, if infected, to then infect multiple facilities in a short period of time before the disease becomes detectable, thus involving multiple facilities in epidemiological investigations that could have been avoided. In any case, as explained earlier in this preamble, the commission was persuaded that additional refinement of residency requirements, primarily to address scenarios in which breeder deer are transferred between facilities under common ownership in the same location, is warranted, and the residency provisions were not adopted. The commenters stated opposition to the proposed requirement for test samples to be submitted within one day of collection at release sites epidemiologically connected to positive deer breeding facilities. The commission agreed with the comment and changes have been made accordingly. The commenters also opposed the proposed requirement for breeder deer to be subjected to ante-mortem testing as a condition of transfer to another deer breeder, stating "This portion of the proposal lacks merit that should be given for not-detected results on ante-mortem tests. If adopted, this needs to include a provision removing all language from the rules related to tier facilities or tier deer. The Texas Animal Health Commission rules do not recognize tiers as a disease threat. The tier terminology in the current rules was created by TPWD staff and places an unreasonable burden on lawfully permitted deer breeders who are already required to provide not-detected test results of 100% of mortalities and 100% ante-mortem tests prior to release." The department disagrees with the comments and responds that the provision in question is in response to the detection of CWD in deer breeding facilities, which continues in spite of recent rule changes to improve surveillance effectiveness. The provision in question mimics current rules requiring ante-mortem testing of breeder deer prior to release, and will provide an additional layer of surveillance protection. With respect to "tier" status, the department recognizes that TAHC rules do not extend to that level of epidemiological connectivity, which does not mean "tier" designation is not useful or necessary. A breeding facility that has received an exposed deer that was in a trace-out facility is of epidemiological concern and value. TAHC regulates livestock; the department conserves and protects wildlife, which live in a state of nature and are not domesticated, and once released from a breeding facility, breeder deer become free-ranging wildlife. Therefore, what suits the management of wildlife isn't necessarily something that TAHC, as a regulator of livestock, considers necessary. The department does not believe the "tier" category places an undue burden on the regulated community, especially when due diligence is performed with respect to provenance and quantity of deer, and sources of deer by a prospective purchaser, and in any case, the rules as proposed do not impose or alter any current provision related to "tier" status. The department also responds that compliance with current rules does not affect the necessity for the rules as adopted. The commenters also stated that if the provisions regarding ante-mortem testing prior to transfer between breeders is adopted, "then containment zones and surveillance zones should be immediately abolished." The department disagrees with the comment and responds that the rules as proposed did not contemplate the department's system of CWD management zones and such a change is beyond the scope of this rulemaking. No changes were made as a result of the comments. The commenters stated opposition to the proposed provisions to impose a seven-day deadline for submission of CWD test samples for Trap, Transport and Process permits, stating that it would not mitigate disease risk at all and stating that all TTP deer should be tested before being distributed to food banks. The department disagrees with the comment and responds that the rule as adopted mitigates disease risk, as the current rules require only the annual submission of test results. By expediting the process, the department is able to react more quickly in the event CWD is detected. The department agrees that testing harvested deer for CWD is prudent, and recommends not consuming meat from infected animals. No changes were made as a result of the comments.

The department received a letter from Senator Juan Hinojosa expressing concerns over the timeline to adopt the proposed rules, noting that there has not been enough time to review and provide detailed responses to public comment and any needed revisions to proposed rules. Senator Hinojosa requested delay of consideration or adoption only of a portion of the rules such as ante-mortem testing requirements for breeder-to-breeder movement. The department respectfully disagrees with the comments and responds that the rules were proposed and adopted in accordance with all applicable statutes regarding agency rulemaking, including public notice requirements. The department also notes the rules were developed with the knowledge, presence and participation of all components of the regulated community, including deer breeders and the department's CWD Task Force. No changes were made as a result of the comments.

The department also received a letter signed by Senator Bob Hall, Senator Charles Perry, Senator Mayes Middleton, Senator Angela Paxton, Senator Tan Parker, and Senator Drew Springer asking the commission to delay consideration and adoption of the rules. The letter expressed concern that the department did not prepare a detailed economic impact statement concerning the proposed rules or allow sufficient time for adequate public input and comments or legislative oversight. The department respectfully disagrees with the comments and responds that the rules were proposed and adopted in accordance with all applicable statutes regarding agency rulemaking, including public notice requirements and economic impact analyses. The department also notes the rules were developed with the knowledge, presence, and participation of all components of the regulated community, including deer breeders and the department's CWD Task Force. No changes were made as a result of the comments.

The Texas Deer Association and the Deer Breeders Corporation commented in opposition to adoption of the rules as proposed.

The Texas Wildlife Association, the Texas and Southwestern Cattle Raisers Association, the Texas Sheep and Goat Raisers Association, the Texas Farm Bureau, the Archery Trade Association, the Boone and Crockett Club, the Mule Deer Foundation, the National Deer Association, the National Wildlife Federation, the Pope and Yong Club, the Rocky Mountain Elk Foundation, The Wildlife Society, the Theodore Roosevelt Conservation Partnership, the Texas Foundation for Conservation, Plateau Land and Water, the Texas Nature Conservancy, and the Backcountry Hunters and Anglers commented in support of adoption of the rules as proposed.

The department received 1,378 comments supporting adoption of the rules as proposed.

SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

DIVISION 2. CHRONIC WASTING DISEASE - COMPREHENSIVE RULES

31 TAC §§65.91, 65.92, 65.95, 65.97, 65.98

The amendments are adopted under the authority of Parks and Wildlife Code, §42.0177, 42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, or final processing requirements or provisions of §§42.001, 42.018, 42.0185, 42.019, or 42.020, or other similar requirements or provisions in Chapter 42; Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapters R and R-1, which authorize the commission to establish the conditions of a deer management permit for white-tailed and mule deer, respectively; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

§65.95.Movement of Breeder Deer.

(a) General. Except as otherwise provided in this division, a breeding facility may transfer breeder deer under a transfer permit that has been activated and approved by the department to:

(1) another breeding facility as provided in subsection (b) of this section;

(2) an approved release site as provided in subsection (c) of this section; or

(3) a DMP facility (however, deer transferred to DMP facilities cannot be recaptured and must be released as provided in the deer management plan)

(b) Transfer From Breeding Facility to Breeding Facility.

(1) A breeder deer may be transferred from one breeding facility to another breeding facility only if:

(A) an ante-mortem test on rectal or tonsil tissue collected from the deer within the eight months immediately preceding the transfer has been returned with test results of "not detected"; and

(B) the deer is at least six months of age at the time the test sample required by this subsection is collected.

(2) An ante-mortem test result of "not detected" submitted to satisfy the requirements of §65.92(d) of this title (relating to CWD Testing) may be utilized a second time to satisfy the requirements of this subsection, provided the test sample was collected as provided in paragraph (1) of this subsection.

(3) A facility from which deer are transferred in violation of this subsection is automatically NMQ and any further transfers are prohibited until the permittee and the owner of the destination facility have complied with the testing requirements of the department, based on an epidemiological assessment as specified in writing.

(c) Release Sites; Release of Breeder Deer.

(1) An approved release site consists solely of the specific tract of land to which deer are released and the acreage is designated as a release site in TWIMS. A release site owner may modify the acreage registered as the release site to recognize changes in acreage (such as the removal of cross-fencing or the purchase of adjoining land), so long as the release site owner notifies the department of such modifications prior to the acreage modification. The release site requirements set forth in this division apply to the entire acreage modified under the provisions of this paragraph.

(2) Liberated breeder deer must have complete, unrestricted access to the entirety of the release site; provided, however, deer may be excluded from areas for safety reasons (such as airstrips) or for the purpose of protecting areas such as crops, orchards, ornamental plants, and lawns from depredation.

(3) All release sites onto which breeder deer are liberated must be surrounded by a fence of at least seven feet in height that is capable of retaining deer at all times under reasonable and ordinary circumstances. The owner of the release site is responsible for ensuring that the fence and associated infrastructure retain deer under reasonable and ordinary circumstances.

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

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

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

(A) an ante-mortem test on rectal or tonsil tissue collected from the deer within the eight months immediately preceding the release has been returned with test results of "not detected"; and

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

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

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

(d) Trace-out Release Site.

(1) A release site is a trace-out release site if it has:

(A) received deer directly or indirectly from a positive breeding facility; and

(B) it has not been released from a hold order or quarantine related to activity described in subparagraph (A) of this paragraph.

(2) The landowner of a trace-out release site must:

(A) within 60 days of notification by the department that trace-out release status has been confirmed, remove every trace deer at the release site, either by lawful hunting or as specifically authorized in writing by the department (or both), and submit post-mortem CWD samples for each deer within seven days of mortality; and

(B) submit post-mortem CWD test results for 100 percent of all hunter-harvested deer until the department is confident that CWD is not present at the release site or as prescribed in a herd plan.

(3) No breeder deer may be transferred to a trace-out release site unless the deer has been tagged in one ear with a button-type RFID tag approved by the department.

(e) The owner of a release site that is not in compliance with applicable provisions of this division is ineligible for enrollment or continued participation in the Managed Lands Deer Program under Subchapter A of this chapter.

§65.98.Transition Provisions.

(a) A release site that was not in compliance with the applicable testing requirements of this division in effect between August 15, 2016 and the effective date of this section shall be:

(1) required to comply with the applicable provisions of this division regarding CWD testing with respect to release facilities; and

(2) ineligible to be a release site for breeder deer or deer transferred pursuant to a Triple T permit or DMP until the release site has complied with paragraph (1) of this section.

(b) To the extent that any provision of this subsection conflicts with the provisions of §65.99(e) of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Breeding Facilities), this section controls. Tissue samples required by §65.99(e)(2)(E) of this title shall be submitted within 60 days of notification by the department of Category B status.

(c) As of the effective date of this subsection, the provisions of §65.99(i) of this title cease effect.

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 December 29, 2023.

TRD-202400001

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: January 18, 2024

Proposal publication date: September 29, 2023

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

31 TAC §§65.605, 65.608, 65.611

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, sale, of breeder deer held under the authority of the subchapter.

§65.608.Annual Reports and Records.

(a) Each deer breeder shall file a completed annual report by not later than May 15 of each year.

(b) A person other than a deer breeder holding breeder deer for breeding or health care purposes shall maintain and, upon request, provide copies of transfer permits indicating the source of all breeder deer in the possession of that person.

§65.611.Prohibited Acts.

(a) Deer obtained from the wild under the authority of a permit or letter of authority issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, or R shall not be commingled with deer held in a permitted deer breeding facility.

(b) A person commits an offense if that person places or holds breeder deer in captivity at any place or in any facility for which the herd inventory on file with the department does not account for those breeder deer, except for fawn breeder deer that are not yet required to be reported to the department.

(c) No breeder deer shall be held in a trailer or other vehicle of any type except for the purpose of immediate transportation from one location to another.

(d) No person may hold more than one cervid species at any time in a deer breeding facility except as provided by §65.602(e) of this title (relating to Application and Permit Issuance), or cause or allow the interbreeding by any means of white-tailed deer and mule deer.

(e) Possession of a deer breeder's permit is not a defense to prosecution under any statute prohibiting abuse of animals.

(f) No deer breeder shall exceed the number of breeder deer allowable for the permitted facility, as specified by the department on the deer breeder's permit.

(g) This subsection does not apply to breeder deer lawfully obtained prior to June 21, 2005. Except as provided in this subsection, no person may:

(1) possess a deer acquired from an out-of-state source; or

(2) import or attempt to import deer from an out-of-state source.

(h) It is an offense for any person the department has authorized as a facility inspector to submit the checklist or letter of endorsement required by §65.603(a)(2) of this title (relating to Application and Permit Issuance) if the person has not personally conducted an onsite inspection at the facility.

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

(j) No person may clone or authorize or participate in the cloning of a white-tailed deer or mule deer unless specifically authorized to do so by a permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter C. For the purposes of this subsection, cloning is the creation or attempted creation of a white-tailed or mule deer from a single progenitor cell.

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

(1) the deer identified in the reconciled herd inventory for the facility; and

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

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 December 29, 2023.

TRD-202400002

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: January 18, 2024

Proposal publication date: September 29, 2023

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