Texas Register December 17, 2021 Volume 46 Number 51 Pages 8397-8844 Chronic Wasting Disease (CWD) TSE PrP

Texas Register December 17, 2021 Volume 46 Number 51 Pages 8397-8844 Chronic Wasting Disease (CWD) TSE PrP

TITLE 31. NATURAL RESOURCES AND CONSERVATION PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 65. WILDLIFE

SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

The Texas Parks and Wildlife Commission in a duly noticed meeting on November 4, 2021, adopted the repeal of 31 TAC §65.99, amendments to §§65.80 - 65.83, 65.88, 65.90 - 65.98, and new §65.99 and §65.100, concerning Disease Detection and Response. Sections 65.83, 65.90 - 65.95, and 65.97 - 65.99 are adopted with changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 TexReg 6507). The rules will be republished. Sections 65.80 - 65.82, 65.88, 65.96, and 65.100, and the repeal of §65.99, are adopted without changes and will not be republished.

The rules impose new testing requirements for deer breeding facilities and incorporate the provisions of an emergency rule adopted on June 22, 2021 (46 TexReg 3991) in response to multiple detections of chronic wasting disease (CWD) earlier this year in additional deer breeding facilities. The intent of the rules is to reduce the probability of CWD being spread from facilities where it exists and to increase the probability of detecting and containing CWD.

The change to proposed §65.83, concerning Special Provisions, adds language to paragraph (3) to stipulate that in addition to the breeding facility that is the source of deer released to adjoining acreage within a surveillance or containment zone designated by the department, the adjoining acreage itself must also be in compliance with the testing provisions of the subchapter. The current rules governing deer movement by deer breeders within surveillance and containment zones are predicated on the assignment of various categorical distinctions related to disease risk. Those distinctions are no longer necessary and one of the goals of the rules as proposed is to eliminate references to and provisions regarding them in the interests of removing regulatory language that is no longer relevant. In the process, the rule as proposed inadvertently omitted a reference to disease-testing requirements on release sites adjoining breeding facilities. The change remedies that oversight.

The change to §65.90, concerning Definitions, adds language to paragraph (11)(C) to clarify that the definition applies to the history of a deer's residency and not solely to the present location of residence. The change is nonsubstantive and necessary to maintain parallel construction with the language in subparagraphs (A) and (B). The change also adds a new definition for "Trace-in breeding facility." Under current rule §65.95(b)(3), a Transfer Category 3 (TC 3) facility is a breeding facility that has within the previous five years received deer from a CWD-exposed facility, transferred deer to a CWD-positive facility, or possessed deer that were in a CWD-positive facility. These facilities present the highest risk of being a mechanism for transmitting CWD to other breeding facilities and free-ranging deer population. The rules as proposed subsume these facilities under the rubric of "trace" facilities - breeding facilities that have been epidemiologically connected to other breeding facilities where CWD has been discovered ("CWD-positive facilities" or "positive facilities") and prescribe disease management standards for those facilities. As noted previously, one of the goals of the rules as proposed was to "clean up" the division by removing regulatory provisions that are no longer relevant, primarily concerning defunct categories related to transfer and release requirements for breeding facilities. The proposal preamble stated the department's intent in the proposed amendment to §65.99 to "set forth provisions that would apply to those deer breeding facilities that epidemiological investigations reveal are connected to positive facilities, either directly or indirectly." In the process of preserving the provisions of current rule regarding deer movements involving TC 3 facilities within the proposed provisions governing trace facilities, the department identified "trace-out" facilities (facilities that received deer from a positive facilities) and inadvertently failed to preserve the contents of current §65.95(b)(3)(ii), which addresses facilities that transferred deer to a positive facility. The change adds new paragraph (39) to remedy that oversight and alters references as necessary to accommodate the change.

The change to §65.91, concerning General Provisions, adds language to comport the provisions of subsection (c) with provisions of current rules that allow the transfer of deer to or from TC 3 facilities under a herd plan, for the same reasons set forth in the discussion of changes regarding trace-in facilities. The change also implements redesignations as necessary to accommodate changes made to §65.99 regarding trace-in facilities as noted elsewhere in this preamble.

The change to §65.92, concerning CWD Testing, adds language to subsection (d) to clarify that the limitations on the use of ante-mortem testing provided by the subsection apply only to the use of ante-mortem test results to substitute for missed mortalities and does not apply to the use of ante-mortem testing to satisfy the minimum annual testing standards established in §65.94(a)(1)(C). The annual testing requirements establish the minimum statistical basis for assurance that continuous efficacious disease monitoring is occurring, while the provisions allowing the substitution of ante-mortem test results are intended only to provide an acknowledgment that a mortality may be missed under extraordinary circumstances.

The change to §65.93, concerning Harvest Log, alters subsection (b)(5) to replace the word "any" with the word "the" to reflect the change in case created by the removal of references to NUES tags.

The change to §65.94, concerning Breeding Facility Minimum Movement Qualification, adds language to subsection (a)(1)(B) to clarify that the testing requirement imposed by the provision is an annual requirement, not a cumulative requirement. Under current rule, this intent is clear; however, the language of the rule as proposed could be construed to mean having tested 80% of eligible mortalities across the life of the permit is sufficient, which is not the case. The change also removes subsection (d)(5)(B), which the department has determined is now superfluous in light of the provisions of the rules as adopted that lower the test-eligible age for breeder deer from 16 months of age to 12 months of age. Additionally, and for reasons identified earlier in this preamble, the change adds language to subsection (g) to clarify that the limitations on the use of ante-mortem testing provided by the subsection apply only to the use of ante-mortem test results to substitute for missed mortalities and does not apply to the use of ante-mortem testing to satisfy the minimum annual testing standards established in §65.94(a)(1)(C).

The change to §65.95, concerning Movement of Breeder Deer, adds language to subsection (a)(2) to comport with style requirements and to subsection (b)(5) in the interests of precision to clarify that the provisions of the paragraph apply to any deer received from a CWD-positive facility rather than just to positive deer. The provision establishes documentation requirements for release sites where deer from breeding facilities epidemiologically linked to CWD-positive facilities have been released, which would include exposed deer in addition to positive deer. The change also adds clarifying language to paragraph (6) to reflect changes made elsewhere to provisions governing the use of ante-mortem test results. Additionally, the change adds language to ensure that in addition to any testing requirements imposed by the department at a breeding facility pursuant to the section, the testing requirements at release sites must be met as well in order to have Movement Qualified (MQ) status restored. It is axiomatic that deer at the places where breeder deer from trace and positive facilities have been released should be sampled to determine if the releases have spread CWD to new environments. Finally, the change imposes a three-year period of effectiveness for the provisions of paragraph (6). The department has determined that ante-mortem pre-release testing of breeder deer is necessary to detect CWD where it currently exists and in the event that a continuation of ante-mortem pre-release testing is necessary to further the department's disease management strategies, that decision should be made through future rulemaking by the commission. The change also makes necessary redisignations of internal references.

The change to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, retains the language of current subsection (a)(2)(A). In light of the temporary moratorium imposed by the section on the issuance of Triple T permits and commission direction to develop Triple T rules that provide assurances that CWD is not spread by Triple T activities, the proposed amendment is moot.

The change to §65.99, regarding Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, adds language to clarify that trace-in facilities are included in the applicability of the section, as discussed earlier in this preamble. The change also eliminates a deadline for sample submissions in subsection (e)(2)(E) that is no longer applicable or necessary and alters subsection (e)(4) to clarify that the 45-day clock for sample submissions imposed by the paragraph begins on the last known exposure date or from the date the department notifies the permittee of trace status, whichever is later, which is intended to allow permittees additional time to submit samples. Additionally, the change inserts a specific reference to subsection (h) in subsection (f)(3)(D) and (E) to be consistent with the structure of other references to the rules regarding custom testing plans. Finally, the change adds subsection (g) to prescribe requirements for breeding facilities epidemiologically connected to a CWD-positive breeding facility as a consequence of being a trace-in facility. Those requirements are the same as those prescribed by the rules for other types of trace facilities, consisting of requirements to inspect the facility daily for mortalities, immediately report all test-eligible mortalities that occur within the facility, and immediately collect test samples from all test-eligible mortalities that occur within the facility and submit the samples for post-mortem testing within one business day of collection; provisions for the restoration of MQ status upon submission of post-mortem test results of "not detected" for all mortalities; testing provisions for facilities that for whatever reason cannot test trace deer as required; and provisions prescribing the process for requesting and accepting or declining a custom testing plan developed by the department in lieu of the provisions set forth in the rules. The change also makes additional alterations where necessary to indicate the applicability of the rules to trace-in facilities.

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

White-tailed deer and mule deer are indigenous species authorized to be regulated by the department under the Parks and Wildlife Code. Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for better wildlife management (popularly referred to as "Triple T" permits). Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of captive-raised deer for breeding purposes. A deer breeder permit affords deer breeders certain privileges, such as (among other things) the authority to buy, sell, transfer, lease, and release captive-bred white-tailed and mule deer, subject to the regulations of the commission and the conditions of the permit. Breeder deer may be purchased, sold, transferred, leased, or received only for purposes of propagation or liberation. Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, the department may issue a Deer Management Permit (DMP) allowing the temporary possession of free-ranging white-tailed or mule deer within an enclosure on property surrounded by a fence capable of retaining white-tailed deer (under reasonable and ordinary circumstances) for propagation purposes. At the current time, there are no rules authorizing DMP activities for mule deer.

The department, along with the Texas Animal Health Commission (TAHC), has been engaged in an ongoing battle against CWD in Texas since 2002, including in response to repeated detections within deer breeding facilities. Since 2002, more than 130,000 "not detected" post-mortem CWD test results have been obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted more than 47,000 "not detected" post-mortem test results as well. The recent detections of CWD in seven additional breeding facilities create an unprecedented situation because they are at a scale that is orders of magnitude greater than earlier instances of detection encountered by the department.

Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is currently no scientific evidence to indicate that CWD is transmissible to humans; however, both the CDC and the World Health Organization strongly recommend testing animals from CWD Zones prior to consumption, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to cervids. Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population in the United States, and there is evidence that hunters tend to avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either captive or free-ranging cervid populations. The potential implications of CWD for Texas and its annual, multi-billion dollar ranching, hunting, real estate, tourism, and wildlife management-related economies could be significant, unless it is contained and controlled.

The department has engaged in frequent rulemaking over the years to address both the general threat posed by CWD and the repeated detection of CWD in deer breeding facilities. In 2005, the department adopted rules (30 TexReg 3595) that closed the Texas border to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and record keeping. In 2012, based on recommendations from the department's CWD Task Force (an ad hoc group of deer management professionals, landowners, veterinarians, scientists, and deer breeders), the department adopted rules (37 TexReg 10231) to implement a CWD containment strategy in response to the detection of CWD in free-ranging mule deer located in the Hueco Mountains, the first detection of CWD in Texas. In 2015, the department discovered CWD in a deer breeding facility in Medina County and adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, followed by rules (41 TexReg 815) intended to function through the 2015-2016 hunting season. Working closely with TAHC and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department intensively utilized input from stakeholders and interested parties to develop and adopt comprehensive CWD management rules in 2016 (41 TexReg 5726), including provisions for live testing ("ante-mortem") of deer for CWD. Since 2002, the department has made a continuous, concerted effort to involve the regulated community and stakeholders in the process of developing appropriate CWD response, management, and containment strategies, including input from the Breeder User Group (an ad hoc group of deer breeders), the CWD Task Force, the Private Lands Advisory Committee (an advisory group of private landowners from various ecological regions of the state), and the White-tailed Deer and Mule Deer Advisory Committees (advisory groups of landowners, hunters, wildlife managers, and other stakeholders).

The department has also engaged in several rulemakings (via both emergency and normal rulemaking processes) to create containment and surveillance zones in response to CWD detections in both free-ranging and captive deer in various parts of the state. Those rules are contained in Division 1 of Chapter 65, Subchapter B.

The current rules in Division 2 of Chapter 65, Subchapter B have been referred to commonly as the "comprehensive" rules. The rules adopted in this rulemaking incorporate the word "comprehensive" in the title of the division for ease of reference and reduction of confusion. The references to "current rules" in this preamble do not include the emergency rule adopted on June 22, 2021.

The current rules can be generally described as functioning together to impose testing standards necessary to provide a statistically representative sampling effort within deer breeding facilities for purposes of minimally effective surveillance for CWD. The current rules set forth specific CWD testing requirements for deer breeders, which must be satisfied in order to transfer deer to other deer breeders or for purposes of release. One of the most effective approaches to managing infectious diseases and arresting the spread of a disease is to segregate populations of unknown disease risk, suspicious individuals, and suspicious populations from unexposed populations. As a matter of epidemiological probability, when animals from a population at higher risk of harboring an infectious disease are introduced to a population of animals at a lower risk of harboring an infectious disease, the confidence that the receiving population will remain disease-free is reduced. The current rules implement such an approach, albeit at a level that the department unfortunately has concluded, based on the continued spread of CWD, is ineffective in sufficiently reducing the risk of transmission of CWD between breeding facilities or from breeding facilities to release sites. Under current rule, breeding facilities are classified into two broad categories: those facilities authorized to transfer deer (MQ facilities) and those facilities not authorized to transfer deer (NMQ facilities). MQ facilities are further subclassified according to the relative level of risk for the presence of CWD within each facility, based on the provenance of the deer within each facility and the results of continuous annual testing. Breeding facilities are classified as Transfer Category 1 (TC 1), Transfer Category 2 (TC 2), or Transfer Category 3 (TC 3). Similarly, release sites are classified as a Class I, Class II, or Class III. The rules adopted in this rulemaking act collectively to eliminate the concept of the "transfer category" and condition the movement of breeder deer solely on the movement status of deer breeding facilities. The former Transfer Category 3 facilities are those facilities in which CWD has been detected and are under TAHC quarantines, and those facilities that are under TAHC hold orders and have either received an exposed deer within the previous five years, transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility, or possessed a deer that was in a CWD-positive facility within the previous five years. Surveillance at those facilities would be governed under the amended rules and new §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD." In general, the amended and new rules are intended to address the various epidemiological implications resulting from the movement of deer into and out of positive breeding facilities.

To achieve or maintain MQ status under current rules, a facility must have achieved "fifth-year" or "certified" status in the TAHC CWD Herd Certification Program, or provide valid test results of "not detected" for at least 80 percent of the total number of eligible mortalities that occurred in the breeding facility in each reporting year. The department recognizes that if a breeding facility has an unusually low number of eligible mortalities, the requirement to submit post-mortem tests for 80 percent of all eligible mortalities during the year could result in a lower number of post-mortem tests than necessary to achieve adequate CWD surveillance. Therefore, a minimum number of post-mortem tests to be submitted each report year is required. That number is calculated as the sum of the eligible-aged population in the breeding facility at the end of each reporting year, plus the sum of the eligible mortalities that have occurred within the breeding facility during the previous reporting year, multiplied by 3.6 percent. To develop this number, the department considered, based on mortality data required to be reported by permittees, that the average natural mortality in a deer breeding facility was 4.5 percent of the eligible-aged deer population in the breeding facility each year. Therefore, if a deer breeding facility with an average number of natural mortalities among eligible-aged deer tested 80% of those mortalities, the breeding facility would test 3.6 percent (i.e., 80% of 4.5%) of the eligible-aged population each year. This formula was developed with stakeholder input and was intended to create the least burdensome regulatory footprint possible.

Under current rule, when CWD is detected in a facility (a "positive facility"), that facility is immediately prohibited from transferring deer and the department and TAHC staff immediately begin epidemiological investigations to determine the extent and significance of possible disease transmission. Epidemiologically connected facilities, both trace in and trace out, identified by the department and TAHC are subject to quarantines (for positive facilities) and hold orders (for trace facilities) issued by TAHC. Current rule prohibits the transfer of deer to or from a facility if the transfer is prohibited by a TAHC herd plan associated with a quarantine or hold order.

With respect to the most recent detections in 2021 (necessitating the emergency action currently in effect), department records indicate that within the last five years, the seven positive facilities referenced earlier transferred a total of 2,525 deer to 138 deer breeding facilities and 118 release sites located in a total of 92 counties. These breeding facilities and release sites are therefore directly connected to at least one of the positive facilities and by current rule were designated "not movement qualified" (NMQ), which prohibits the transfer of deer. As a result of the ongoing epidemiological investigation and pursuant to existing regulations, 114 of the 138 directly connected breeding facilities have regained movement qualified status if otherwise eligible, leaving 24 facilities of epidemiological concern. An additional 214 deer breeding facilities received deer from one or more of those 72 directly connected breeding facilities; these facilities are indirectly connected to the positive facilities and are or were of epidemiological concern because it is possible that within the last five years any or all of them could have received CWD-infected deer. The five-year window is important because (based on the literature) it encompasses the time period from possible exposure to CWD, through the incubation period, to the time at which the disease can be transmitted to another animal or the environment. As a result of the ongoing epidemiological investigation and pursuant to existing emergency regulations, 185 of the 214 indirectly connected breeding facilities have regained movement qualified status if otherwise eligible, leaving 29 indirectly connected indirectly connected facilities of epidemiological concern.

The current comprehensive rules do not address disease response with respect to indirectly connected facilities (facilities that receive deer that were in the same facility with an exposed deer prior to being transferred to another facility). As noted previously, the recent discovery of CWD in seven more breeding facilities and the resultant extended network of epidemiological connectivity necessitated the adoption of an emergency rule on June 22, 2021 (46 TexReg 3993), which addressed the situation by imposing requirements for disease testing and movement of breeder deer to and from indirectly connected facilities. In addition, the emergency rule requires ante-mortem testing of all test-eligible deer prior to transfer to a release site. The department and TAHC have continued to conduct epidemiological investigations and this rulemaking is intended to implement the pertinent provisions of the emergency rule by way of the normal administrative process, including a minimum 30-day public comment opportunity.

The rules are necessary to protect the state's white-tailed and mule deer populations, as well as the long-term viability of associated hunting, wildlife management, and deer breeding industries. To minimize the severity of biological and economic impacts resulting from CWD, the rules implement a more rigorous testing protocol within certain deer breeding facilities and at release sites than was previously required. The rules allow for MQ deer breeders to continue to move and release breeder deer. The rules as adopted continue the existing extensive cooperation between the department and TAHC and the continued involvement of various stakeholder groups and interested parties.

The department notes that several types of alterations are made repeatedly in the amendments. Throughout Subchapter B there are references and provisions relating to "transfer category" and release-site "classes." Those terms reflect a regulatory structure that is no longer necessary because the current rules have been in place long enough that the distinctions they represent no longer exist. The amendments eliminate references to and provisions regarding those distinctions throughout the subchapter. The only distinction with respect to risk management at this time is MQ versus NMQ.

Similarly, the amendments and new section replace references to TAHC herd plans with the term "herd plan" in order to reflect the interagency cooperation between the department and TAHC. Those changes are also made throughout the rules.

In general, the amendments to sections within Division 1 comport the contents of that division with amendments to Division 2. The sections within Division 1 provide a regulatory structure for the creation of CWD management zones within which special provisions apply to the movement of live deer under department permits and deer carcasses following harvest by hunters.

The amendment to §65.80, concerning Definitions, eliminate definitions for terms that are no longer used in the rules and add a definition of "herd plan" to comport the division with changes adopted in Division 2.

The amendment to §65.88, concerning Deer Carcass Movement Restrictions, inserts clarifying language in subsection (b)(4) to emphasize that skull plates must be cleaned of internal soft tissue.

The terms "eligible mortality" and "adult deer" are being removed because those terms are artifacts of previous iterations of the rules and the current zone rules no longer employ them, as all CWD testing requirements are now contained in Division 2. The amendment defines "herd plan" as "a set of requirements for disease testing and management developed by the department and TAHC for a specific facility." Elsewhere in this rulemaking, the department eliminates specific references to TAHC herd plans and replaces them with generic references to herd plans to reflect the fact that herd plans are jointly developed by the department and TAHC.

As noted earlier in this preamble, the amendments remove references to the terms "transfer category," "release category," and various provisions associated with those terms throughout the division. The amendments to Division 2 implement an improved methodology for determining the risk of deer breeding facilities with respect to the spread of CWD by conditioning movement restrictions solely on MQ status, which makes the concepts of transfer category and release site class unnecessary. The amendment also references the provisions of new §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, where necessary, to preserve current limitations on deer movement to and from deer breeding facilities determined to present the highest risk of spreading CWD (currently referred to as "TC 3" facilities). The amendments also make nonsubstantive housekeeping-type changes in the interest of clarity and organization.

The amendments and new section within Division 2 incorporate the provisions of the current emergency rule in effect and comport the existing provisions of the division accordingly, with exceptions as noted.

The amendment to §65.90, concerning Definitions, eliminates definitions for "eligible-aged deer" "eligible mortality," "Interim Breeder Rules," "NUES tag," "originating facility," "status," "TAHC Herd Certification Program," and "TAHC Herd Plan," adds definitions for "exposure," "herd plan," "inconclusive," "insufficient follicles," "last known exposure," "release," "test-eligible," "Tier 1 facility," "trace deer," and "trace-out breeding facility," and modifies the definitions for "confirmed," "CWD-positive facility," "exposed deer," and "reconciled herd."

The definition of "eligible-aged deer" is being eliminated because the amendment replaces it with a new definition for "test-eligible."

The definition of "eligible mortality" is being eliminated because the term is no longer used in the rules.

The definition of "Interim Breeder Rules" is being eliminated because it existed only to provide a point of reference for the transition from a previous set of rules intended to contain and manage CWD in breeding facilities to the current rules implementing a comprehensive CWD management plan.

The definition of "NUES tag" is being eliminated because the retention and visibility of NUES tags is suboptimal.

The definition of "originating facility" is being eliminated because the rules eliminate the current structure based on transfer and release status assigned to individual breeding and release facilities based on their comparative risk of spreading CWD; thus, the term is no longer used and is therefore unnecessary.

The definition of "status" is being eliminated because the term no longer has a specific meaning in the context of transfer and release facility designations.

The definitions of "TAHC CWD Herd Certification Program" and "TAHC herd plan" are being eliminated because the rules acknowledge the cooperative nature of interagency planning and resource management activities between the department and the TAHC and the reality that the repeated emergence of CWD in deer breeding facilities has created operational stressors necessitating a shared burden in the development of plans for individual breeding facilities.

The amendment defines "exposure" as "the period of time that has elapsed following the introduction of an exposed deer to a breeding facility." Because individual deer that have been exposed to CWD can incubate the disease at different rates, it is epidemiologically critical to establish a timeline to determine the highest likelihood of early detection of the disease if it is present.

The amendment defines "inconclusive" as "a test result that is neither "positive" nor "not detected" on the basis of clinical deficiency." Current rules allow for the restoration of MQ status in certain situations on the basis of ante-mortem testing of an entire captive herd. Due to a number of factors, not all test samples are sufficient to test for CWD. The department acknowledges that fact; therefore, the rules as adopted allow a certain percentage of test results to be inconclusive without jeopardizing the adequacy of surveillance. The most common cause of inconclusive test results is the failure of a sample to contain enough lymphoid follicles to produce a reliable test result, referred to as a result of "insufficient follicles." Therefore, the amendment includes a definition of "insufficient follicles" for clarity's sake. The term is defined as "a test result indicating that a tonsil or rectal biopsy sample contained an insufficient number of lymphoid follicles to produce a valid test result."

The amendment defines "last known exposure" as "the last date a deer in a trace-out breeding facility was exposed to a trace deer prior to the death or transfer of that trace deer." The definition is necessary because the CWD testing requirements imposed by new §65.99 are predicated upon the length of time since an exposed deer was in a facility.

The amendment defines "release" as "the act of liberating a deer from captivity. For the purposes of this division the terms "release" and "liberate" are synonymous." The definition is necessary because Parks and Wildlife Code, Chapter 43, Subchapter L uses the terms "release" and "liberation" interchangeably and the department intends to provide a definitive affirmation that the two terms are indeed synonymous.

The amendment defines "test-eligible" as "a deer at least 16 months of age prior to the effective date of the rules and following the effective date of the rules, a deer at least 12 months of age." The rules lower the minimum age at which deer may be tested; however, that change will take place during the reporting year. The definition is necessary to make that clear.

The amendment defines "Tier 1 facility" as "a breeding facility that has received an exposed deer that was in a trace-out breeding facility." The definition is necessary to acknowledge the epidemiological importance of exposed deer that were received indirectly via a Category A or Category B trace-out breeding facility.

The amendment defines "trace deer" as "a deer that the department has determined had been in a CWD-positive deer breeding facility on or after the date the facility was first exposed to CWD, if known; otherwise, within the previous five years from the reported mortality date of the CWD-positive deer, or the date of the positive ante-mortem test result." The definition is necessary because new §65.99 creates testing requirements for breeding facilities that have received deer epidemiologically connected to a positive facility.

The amendment defines "trace-out breeding facility" as "a breeding facility that has received an exposed deer that was in a CWD-positive deer breeding facility." The definition is necessary because new §65.99 creates testing requirements for breeding facilities that have received deer directly from a positive facility.

The amendment alters the definition of "confirmed" to include the Texas A&M Veterinary Medical Diagnostic Laboratory as a testing authority.

The amendment alters the definition of "CWD-positive facility" to include the term "positive facility" in order to reduce the repetition of an unwieldy term throughout the rules.

The amendment replaces the definition of "exposed deer" with a more nuanced definition that reflects the provisions of the emergency rule currently in effect that are incorporated in Division 2 by this rulemaking. The new definition is based on the importance of determining the extent to which any given deer breeding facility is epidemiologically connected to facilities where CWD is known to exist, which in turn determines the CWD testing requirements necessary to both determine the epidemiological status of the facility and the nature and extent of CWD testing necessary to allow the resumption of transfers by the facility. The current definition states that an exposed deer is a deer that is in a CWD-positive facility or was in a CWD-positive facility within five years prior to the discovery of CWD in that facility. The new definition identifies an exposed deer as a deer meeting any of three criteria: the deer is or was in a breeding facility after the date that the facility held a CWD-positive deer, the deer is or was in a facility within five years preceding the discovery of a CWD-positive deer that was in the same facility, or the deer is in a facility as of a determination that either of the first two conditions exists with respect to a given facility. The definition is based on the epidemiological need to characterize the potential of any given breeder deer to have been in any facility where the possibility of contracting CWD could have existed.

The amendment to §65.91, concerning General Provisions, eliminates current subsections (e) and (f) because they relate to the transfer categories and release site classes of the current rule as discussed earlier in this preamble. The amendment also conforms language regarding herd plans as discussed previously and makes nonsubstantive housekeeping-type changes to standardize terminology (i.e., replacing phrases such as "introduce into or remove from" with "transfer," which means the same thing).

The amendment to §65.91 alters current subsection (g) to include exceptions for scientific research; current subsection (h) to include "reports" in the list of various communications with the department that are required to be made via the department's online system for deer breeder permit administration, which is necessary for the sake of thoroughness in describing the types of documentation affected by the rules; and adds new subsection (f), which is relocated from current §65.94(e) because it is generally applicable to all breeding facilities. The provision specifies that upon the determination that a facility has received a CWD "suspect" test result, all trace facilities that have been in possession of deer that was present within the CWD suspect facility within the previous five years shall be NMQ until it is determined that the facility is not epidemiologically linked to the CWD suspect deer or the CWD "suspect" test result is not confirmed positive. The intent of the new subsection is to prohibit the transfer of breeder deer from trace facilities to another facility between the time the initial CWD "suspect" test result is received and the result is confirmed.

The amendment to §65.92, concerning CWD Testing, consists of several substantive and nonsubstantive changes. Current rules require tissue samples for ante-mortem testing to be collected within six months of submission from deer at least 16 months of age that have not been the source of a "not detected" test within the previous 24 months. The amendment to subsection (b) changes that standard by requiring samples to be collected within eight months of submission from a deer at least 12 months of age that has not been the source of a "not detected" test result within the previous 12 months. Both the current rules and the rules as adopted reflect the agency's strategy to establish provisions for general surveillance of captive deer populations. Because other provisions of this rulemaking increase the minimum level of ante-mortem testing and require the testing of all mortalities occurring within breeding facilities, as well as the ante-mortem testing of all breeder deer prior to release, the department has determined that it is possible to allow test results from younger deer to be accepted, increase the frequency with which deer may be tested, and increase the interval between sample collection and sample submission. In addition, the change to subsection (b) includes references to other provisions that create exceptions allowing for the testing of deer that had been the source of a "not detected" test result with the previous 12 months.

Current subsection (c) provides that a post-mortem test is not valid unless performed on the obex or medial retropharyngeal lymph node (RLN). The amendment requires the submission of the obex and the RLN. CWD in white-tailed deer and mule deer is typically detected in the RLN sooner than in the obex and the department therefore reasons that requiring the submission of the RLN in addition to the obex will result in earlier detection of CWD positive deer and increase the efficacy of post-mortem CWD testing. In addition, by requiring the submission of both tissues, the possibility of wasted test effort is reduced. For example, if an obex from a deer yields inconclusive post-mortem testing results, an RLN from the same animal may not.

The amendment to subsection (d) and new subsection (e) establish new standards regarding the use of ante-mortem tests to substitute for inadequate post-mortem testing and provide for a transition from the current rules to the rules as adopted. As described earlier in this preamble, the department determines any given breeding facility's MQ status on the basis of a series of calculations intended to provide assurance that the level of post-mortem CWD-testing in a breeding facility is sufficient to monitor for the presence of CWD in the facility. If a facility is unable to provide sufficient post-mortem test results to be designated MQ on that basis alone, the current rules allow ante-mortem testing to be utilized to make up for the inadequate post-mortem surveillance; however, because post-mortem tests are of extremely high epidemiological value, a higher number of ante-mortem substitution tests are required in order to provide a similar level of confidence that CWD can be detected. The amendments replace the testing rate in the current rules with a testing rate developed by the Center for Epidemiology and Animal Health (CEAH), which is an organization within the Animal Plant Health Inspection Service operated under the United States Department of Agriculture. Because ante-mortem substitution testing is a method of compensating for the lack of sufficient and more-desirable post-mortem testing and is calculated for each reporting year, the regulations must stipulate specific timeframes for the collection and submission of the samples in order to make substitution testing meaningful. In other words, MQ status in such situations, because it is dependent upon the herd collectively (rather than individual post-mortem samples) must be reflective of the herd over time within each reporting year. Therefore, the subsection stipulates that all provisions other than paragraphs (3) and (4), if adopted, take effect April 1, 2022, which is the beginning of the next reporting year. Paragraphs (3) and (4) take effect 20 days after the notice of adoption of these rules is filed with the Secretary of State. Subsection (d)(1) requires ante-mortem test samples to be collected within eight months of the end of the reporting year to match the eight-month submission window created in the amendment to subsection (b). Additionally, and for the same reasons, new subsection (e) accommodates the transition from the current rate at which ante-mortem test results may be substituted for post-mortem test results (3:1) to the new ratio (5:1) by allowing the 3:1 substitution ratio to remain until the end of the current permit year.

Subsection (d)(2) provides that the number of ante-mortem results may not exceed 30 percent of the total number of required post-mortem results (multiplied by five, to reflect the new substitution ratio imposed by the rules) in more than two reporting years. A post-mortem test conducted quickly after the death of a deer is the gold standard for CWD testing efficacy. Also (and described in the discussion of the amendment to §65.94), the rules require deer breeders to test all mortalities instead of the current minimum of 80 percent. Because the department acknowledges the reality that it may not always be possible to locate a mortality quickly enough to extract a sample that will be valid, the rules as adopted, like the current rules, allow ante-mortem tests to be substituted for a portion of the required post-mortem test results. Because ante-mortem tests are less sensitive, however, the department believes that it would not be prudent to allow them to be substituted for post-mortem test results at either a high percentage or on a repeated basis. Therefore, the rules provide for what the department has determined, based on what is known about the incubation period and transmissibility of CWD, as well as the efficacy of ante-mortem testing compared to post-mortem testing, is a reasonable substitution standard and a limit on how frequently that standard may be exceeded. Similarly, the department considers that there will be circumstances in which a deer breeder may possess enough deer to make it possible to achieve MQ status, but is unable to meet the requirements of the rules because not enough time has elapsed since previous testing efforts on specific deer. Therefore, subsection (d)(3) allows test results from deer that were tested within the previous 12 months to be submitted, provided all test-eligible deer within the facility have been tested prior to the testing of deer that were tested within the previous 12 months. As explained above, because other provisions of this rulemaking increase the minimum level of ante-mortem testing and require the testing of all mortalities occurring within breeding facilities, as well as the ante-mortem testing of all breeder deer prior to release, subsection (d)(3) allows test results from deer six months of age or older, provided all test-eligible deer in the facility have been tested prior to the testing of any deer that is six months of age or older but younger than 12 months. Subsection (d)(4) establishes a limit of 10 percent on the number of "inconclusive" test results that may be submitted to satisfy the provisions of §65.94(d), excluding facilities that test fewer than ten deer. The provision in question pertains to a small number of NMQ breeding facilities that although unable to meet the testing requirements of §65.94(a), are in compliance with inventory and inspection requirements, haven't received exposed deer, and don't contain enough deer to meet ante-mortem substitution requirements. Current rules allow such facilities to be designated MQ following two rounds of "whole herd" ante-mortem tests 12 months apart, provided the first round of testing begins at least12 months after being designated NMQ. It is not uncommon for test results to be inconclusive, which can happen for a variety of reasons; however, the department has determined that when the number of "inconclusive" results rises above 10 percent, confidence that the detection of CWD will be detected if it exists erodes significantly. Therefore, the department has determined that it is appropriate to limit the number of "inconclusive" test results that can be submitted for purposes of MQ designation, particularly in view of the fact that the facilities in question are unable to meet the testing requirements of §65.94(a). Subsection (d)(5) clarifies that permittees are required to test 100 percent of mortalities that occur within a facility and that no provision of the rules is to be construed to create an exception to that requirement. The amendment to §65.92 alters current subsection (e) and adds new subsections (g) and (h) to make it abundantly clear that test results are tied to the breeding facility in which the samples are taken, are valid only if the deer from which the sample was taken is still in the facility, and cannot be used more than once except as specifically provided by the division. The department seeks to avoid any misunderstandings or confusion regarding the utilization of test results. The purpose of the testing requirements of the division is to provide a representative sampling frame that the department can use for determination of MQ status. An ante-mortem test result is a snapshot in time at the breeding facility where the deer resides and has an epidemiological value that is limited by a variety of factors, including how recently the test was performed. Allowing multiple breeders to re-utilize the same test results would mean that the results are no longer a statistically valid representation of the population of a single facility, meaning the surveillance value of the tests is compromised. Similarly, a test result cannot be used more than once for the same reason (with the sole exception of allowing sufficiently recent ante-mortem test results used for another purpose to be used to meet the ante-mortem testing requirements for release as provided in the amendment to §65.95). Therefore, the rules explicitly state those conditions.

Finally, the amendment alters the time periods within which permittees must report and submit samples for post-mortem testing. The current rules stipulate that mortalities must be reported within 14 days of detection; the rules also require samples from mortalities to be submitted within 14 days of collection. As has been noted at various points in this discussion, time is critical with respect to CWD testing. The department has determined that the efficacy of post-mortem testing would be significantly increased by reducing the timeframes for reporting, collection, and submission of post-mortem samples. Previous rules allowed samples to be submitted at any time within the reporting year; rules promulgated earlier this year imposed a 14-day requirement. The department concludes that imposing a seven-day requirement will result in improved surveillance as well as enhancing the likelihood of earlier detection and subsequent epidemiological investigation.

The amendment eliminates current subsection (g), which is no longer necessary because all breeder deer are required to be ante-mortem tested prior to release by §65.95 as adopted.

The amendment to §65.93, concerning Harvest Log, eliminates references to the NUES tag for reasons explained in the discussion of the amendment to §65.90, concerning Definitions.

The amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, requires permittees to post-mortem test all mortalities within a breeding facility to achieve MQ status. As noted earlier in this preamble, the calculations for MQ status under the current rules involve a benchmark requirement of "not detected" post-mortem test results for 80 percent of eligible mortalities within a breeding facility each year. The department has concluded that requiring 100 percent of test-eligible (the term replacing "eligible-aged," as noted in the discussion of the amendment to §65.90) mortalities to be tested is necessary to increase the confidence of early detection of CWD. Additionally, mortality data reported to the department following the promulgation of the current rules in 2016 indicate a higher average mortality rate for breeding facilities than what historical data indicated. This means that the original baseline of 4.5 percent average expected mortality rate employed in the calculations made under current rule is an under-representation of actual mortality rate, which in turn means that the current testing requirements are inadequate to provide the minimum acceptable confidence of detecting CWD, should it exist in any given breeding facility in the first year of testing under the rules as adopted, and an increasing probability of detection thereafter if the disease is present. On that basis, and in consultation with TAHC, the department has determined that to obtain an acceptable detection probability if CWD exists in any given breeding facility, the combination of 100 percent post-mortem testing, a 5:1 ratio of ante-mortem to post-mortem substitution (with the limitations on the magnitude and frequency of ante-mortem substitutions), tesing a minimum of five percent of the herd inventory, combined with ante-mortem testing of all breeder deer prior to release is required.

The amendment to §65.94 also adds new subsection (g) to provide for denial of permit renewal for a permittee who has exceeded the maximum utilization of the 30 percent provision in more than two years during the life of the permit. Parks and Wildlife Code, §12.603, allows the department to refuse to issue or renew a deer breeder's permit if the permittee fails to submit accurate applicable reports, which under the rules as adopted is not allowed for ante-mortem test results in excess of the 30 percent provision.

Provisions within the emergency rule currently in effect have been incorporated in the amendment to §65.94 in the form of new subsections (h) and (i), dealing with breeder deer reported to the department as escaped, and deer that cannot be confirmed as being present in a breeding facility. A persistent issue over the years has been the discrepancies between the inventories reported to the department and the actual number of deer present in facilities when inspections are conducted. A related issue is the number of deer reported by deer breeders as having escaped captivity. A third issue is the accuracy of mortality reporting. Department records indicate that for each of the last five years an average of 26 deer breeders have reported a shared total of 159 escapes. Department records for the same time period indicate that an average of 31 breeding facilities had a shared total of 825 missing deer (deer that department records indicate should be present in the facility, but cannot be located or verified as being present). The amendment stipulates that deer reported as escaped and deer that cannot be accounted for will be treated as mortalities for the purposes of the rules. The amendment also stipulates that lawfully recaptured deer will not be treated as mortalities.

Finally, the amendment to §65.94 implements transition provisions to provide for data and reporting integrity for the same reasons identified in the discussion of the amendment to §65.92.

The amendment to §65.95, concerning Movement of Breeder Deer, alters subsection (a) to incorporate provisions from the current emergency rule regarding fawns sent to nursing facilities. A popular practice with deer breeders is the transfer of fawns (young deer) to a nursing facility. The department believes that risk of disease transmission between facilities can be mitigated by prohibiting any nursing facility from receiving fawns from more than one breeding facility per year.

The amendment also adds provisions to current subsection (c) to require all breeder deer to be ante-mortem tested with "not detected" results prior to release, provided the deer is at least six months old and the test sample is collected within eight months of release. The department believes that it is imperative to test all breeder deer before they are released, in accordance with a testing protocol that provides an acceptable probability of detecting CWD if it exists in any given breeding facility. The amendment also creates an exception to the requirements of §65.92 regarding the utilization of ante-mortem test results more than once.

Finally, the amendment to §65.95 also removes provisions regarding transfer and release site classifications and effects various housekeeping-type changes.

The amendment to §65.96, regarding Movement of DMP Deer, removes testing requirements that are irrelevant in light of the adopted provisions that eliminate transfer category and release class provisions and prohibits the transfer of breeder buck deer from DMP facilities to deer breeding facilities, which is allowed under current rule. The amendment also incorporates provisions from the current emergency rule that prohibit the transfer of breeder deer to a DMP facility from a breeding facility that is subject to the provisions of new §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD or a trace release site.

The amendment to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, provides for the cessation of the issuance of Triple T permits until further notice. Although the rules as adopted are intended to provide assurance of early detection of CWD, they do not eliminate the risk for spreading CWD from sites where breeder deer releases have occurred in the past (including releases to properties adjacent to breeding facilities); therefore, release sites are intended to be terminal sites for breeder deer. The department strongly believes that, given the number of breeder deer that have been released in virtually every part of the state (more than 141,000 in the last five years), the practice of trapping and transporting deer should be paused on a temporary basis until the department is able to develop rules to provide sufficient assurance that CWD has not been spread as a consequence of previous deer releases. The amendment also makes numerous nonsubstantive, conforming and housekeeping-type changes as discussed previously in this preamble with respect to other sections.

The amendment to §65.98, concerning Transition Provisions, eliminates references to rules that either no longer exist or have no connection to the current or adopted rules and provides that 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 is required to comply with the applicable provisions of the division regarding CWD testing with respect to release facilities, which is necessary to provide for continuity of testing effort moving forward.

New §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, consists of the provisions of the current emergency rule in effect, less those provisions with general applicability that have been located in other sections of the subdivision as noted. As discussed previously in this preamble, this rulemaking is necessary because of additional detections of CWD in deer breeding facilities, which, because the source facilities met the requirements of current rules to attain MQ status, indicates the current rules have not been effective in providing for early detection or containment of CWD. Indeed, the evidence suggests that CWD likely was present in at least three of the facilities for more than a year before being detected, which introduces the possibility that CWD could have been spread to hundreds of sites directly and to even more sites from those sites. In addition to the testing provisions discussed earlier in this preamble intended to increase the efficacy of surveillance in deer breeding facilities generally, new §65.99 sets forth provisions that apply to those deer breeding facilities that epidemiological investigations reveal are connected to positive facilities, either directly or indirectly, and thus present the highest likelihood of spreading CWD further.

New subsection (a) provides that in the event of conflicts with other rules, the provisions of new §65.99 prevail, which is necessary to prevent potential misunderstanding and confusion. The new rule affects facilities that pose a demonstrably present threat to free-ranging and captive deer populations; therefore, the department must ensure that the threat is not exacerbated by conflicts with other regulations.

New subsection (b) prohibits the transfer of deer from a facility subject to the provisions of the section except as specifically provided in a herd plan. The facilities affected by the new rule are facilities that pose a demonstrably significant risk of harboring and spreading CWD; therefore, in consultation with TAHC, the department will prepare a herd plan for each affected facility to prescribe specific mitigation and surveillance measures necessary to achieve confidence that CWD is not present or being spread as a result of transfer or release.

New subsection (c) requires all deer transferred from an affected facility to be tagged with a button-type RFID tag, which is necessary to identify released breeder deer in the event that further epidemiological investigation is necessary.

New subsections (d) and (e) prescribe testing requirements to regain MQ status for directly connected trace-out facilities, of which there are two categories: those facilities in which all trace deer received by the facility are either alive and still in the facility or have died and been post-mortem tested with "not detected" results ("Category A" facilities), and those facilities where that is not the case (i.e., some or all trace deer have been transferred, released, or died without being tested post-mortem), "Category B" facilities. For Category A facilities, new subsection (d) would stipulate that the facility is immediately NMQ and require all trace deer to be euthanized and tested within seven days of the permittee being notified by the department of Category A status. Obviously, a facility that has received exposed deer poses a demonstrable threat of harboring and/or spreading CWD and should be prevented from transferring deer until a determination of disease status can be made. Requiring all trace deer to be euthanized and tested is necessary to gain the most immediate and definitive idea of the disease status of the exposed deer. The permittee is also required to inspect the facility daily for mortalities, immediately report all test-eligible mortalities, and collect and submit test samples for those mortalities. Again, post-mortem testing provides the best basis for determining whether CWD is present or absent; thus, in concert with the euthanization and testing of all trace deer, the immediate reporting and testing of test-eligible mortalities is the most direct and efficacious method of determining if MQ status can be restored. The new subsection also provides that in lieu of euthanizing all trace deer, a permittee could request a custom testing plan while inspecting the facility daily and testing mortalities as specified. The department recognizes that some permittees for whatever reason could be reluctant to euthanize deer; however, the department also cautions that a custom testing plan would likely include a much longer timeframe for restoration of MQ status. New subsection (d)(4) provides for the department in consultation with TAHC to decline to authorize a custom plan if an epidemiological assessment determines that a custom testing plan is inappropriate. The provision is necessary to address those situations in which there is simply no way to achieve statistical confidence that a captive population is free of CWD. New subsection (d)(5) requires, in addition to compliance with all applicable provisions of the subsection and the division, that all test results must be "not detected" in order for MQ status to be restored. Because the facilities affected by the new rule present a demonstrably higher risk of harboring and spreading CWD, it is prudent to require a perfect testing record.

New subsection (e) sets forth the requirements for those facilities designated as Category B. Because Category B trace-out facilities are not in possession of some or all trace-out deer that entered the facility, the testing regime necessary to restore MQ status is not as straightforward as with Category A trace-out facilities. As with Category A trace-out facilities, the new subsection provides for the automatic designation of NMQ status and requires the euthanization and testing of all trace deer in the facility, daily inspections for mortalities, and immediate reporting and testing of mortalities, for reasons explained in the discussion of new subsection (d). Additionally, the new subsection requires ante-mortem testing of all deer in the facility according to schedules based on the elapsed time since the last known exposure. The timing of the ante-mortem testing required by the new subsection is determined by what is known about the incubation time of CWD and the length of time between exposure and the ability of ante-mortem testing to detect CWD if it is present. As with new subsection (d), the new subsection would require all test results to be "not detected" and offer permittees the option of requesting a custom testing plan, providing also that the department could decline to authorize such a plan if in consultation with TAHC it is determined that it is inappropriate.

New subsection (f) would set forth requirements for Tier 1 facilities, those facilities that have received an exposed deer from a trace-out facility. As with Category A and Category B facilities, Tier 1 facilities are automatically NMQ upon notification by the department and are required to conduct daily inspections for mortalities and immediately report and test them. Additionally, the new subsection predicates the restoration of MQ status on the attainment of one of four possible scenarios: post-mortem results of "not detected" for every exposed deer received from a trace facility; restoration of MQ status by the department to all trace facilities from which exposed deer were received; ante-mortem testing as specified for Category B trace-out facilities in subsection (e)(2)(E); or compliance with the provisions of a custom testing plan. The intent of the department is to provide as many ways as possible, defensible within the precepts of sound biological and epidemiological science, to enable affected breeding facilities to regain MQ status.

New subsection (g) is added to address trace-in breeding facilities, for reasons discussed earlier in this preamble with respect to changes to the proposed text.

New subsection (h) sets forth the particular provisions affecting permittees who pursue the option of a custom testing plan in lieu of the testing requirements of subsections (d) - (f). The new subsection stipulates that within seven days of being notified of Category A trace-out facility, Category B trace-out facility, or Tier 1 facility status, a permittee could request the development of a custom testing plan approved by the department and TAHC. If the department in consultation with TAHC determines that a custom testing plan is feasible, the department will develop the plan and provide it to the permittee, who would then have seven days to decide whether to accept the plan or decline participation. Acceptance or refusal of the plan must be in writing. If a permittee chooses to accept the plan, the provisions of the subsection mandating the euthanasia of all trace deer do not apply; if the permittee declines participation in the plan, the requirements of the section resume applicability. The subsection also stipulates that a participating facility remains NMQ until the provisions of the plan are satisfied.

New subsection (i) prescribes the conditions under which deer younger than 120 days of age would be allowed to be transferred to a nursing facility.

New §65.100, concerning Violations and Penalties, contain the provisions of current §65.99, with the addition of herd plans and custom testing plans to the list of components regulated by the division, violations of which are an offense.

The department received 807 comments opposing adoption of all or part of the rules as proposed. Of those 807 comments, 512 articulated a specific reason or rationale for opposing adoption. Many comments were lengthy and contained impressions, narratives, and background or extraneous information that while certainly useful to the department in forming an understanding of the commenter's point of view, were not, strictly speaking, germane to specific provisions in the rules. The department has therefore categorized comments by the subject of opposition. The department believes that it is important to identify each specific rationale expressed in opposition to adoption and to respond it. Therefore, rather than an exhaustive, lengthy, and repetitive verbatim comment-by-comment, point-by-point response format, the department has chosen to, where possible, separate comments into the specific reasons articulated for opposition to the rules and then respond to those comments in one statement. In some cases, the nature of the grammatical and syntactic construction of the comment or the organization of the comment make it difficult to categorize into constituent components. In those case, the department has left the comment intact, with truncation as necessary to eliminate extraneous content. The department notes that this approach results in the number of responses being greater than the total number of commenters.

The department received 54 comments opposing adoption of the rules on the basis that the intent of the department is malicious or vindictive. The commenters stated, variously, that the rules are unfair, biased against deer breeders, an attempt to blame CWD on deer breeders, an attempt to put deer breeders out of business, a direct attack on deer breeders, biased, or otherwise motivated by ill will towards deer breeders. The department disagrees with the comments and responds that any assertion that the department in any way intends to vilify deer breeders or put deer breeders, individually or collectively, out of business is flatly untrue. No changes were made as a result of the comments.

Four commenters opposed adoption and specifically stated that the rules are unfair because only deer breeders are required to test for CWD. Similarly, 16 commenters specifically stated that the rules should require the testing of some or all hunter-harvested deer, including deer harvested on Managed Lands Deer Program (MLDP) properties. The department disagrees with the comments and responds that disease management is not a matter of fairness, but in any event, the epidemiological reality is that confined populations and free-ranging populations present very different environments with respect to disease propagation, transmission, and management efforts; therefore, the surveillance and sampling strategies for free-ranging versus captive populations are different. The department also responds that current surveillance efforts in free-ranging deer populations conducted within 41 geographically distinct deer management units are achieving their goals of providing statistical confidence that CWD would be detected in the free-ranging populations in those areas if present at a targeted prevalence in almost the entirety of the state. No changes were made as a result of the comments.

One commenter opposed adoption and specifically stated that department is destroying deer breeding because a few wealthy influential people want to shut down deer breeders. Similarly, five commenters specifically stated that CWD is a "political" disease, two commenters specifically stated that powerful interests are trying to stop competition from deer breeders, one commenter specifically stated that the rules are intended to provide personal monetary benefit to unidentified influential persons, and one commenter stated that the rules are evidence of corruption. The department disagrees with the comments and responds that the rules as adopted were developed by the department in consultation with Texas Animal Health Commission with the assistance of the regulated community and other stakeholders. No changes were made as a result of the comment.

One commenter opposed adoption and stated "The commission that oversees TP&W I believe is the route [sic] of the problem and politics have now resulted in the effort to eliminate deer breeders as a viable economic industry." The department disagrees with the comment and responds that the Texas Parks and Wildlife Commission is guided by its primary statutory responsibility to protect the state's wildlife resources. No changes were made as a result of the comment.

Three commenters opposed adoption and stated that the rules are unfair because they are punishing the many for the mistakes of the few. Similarly, one commenter stated specifically that the previous rules were so lax that poorly managed deer breeding operations were allowed to avoid submitting test samples for long periods of time. The department disagrees with the comments and responds, first, that the rules are not intended to be punitive, and second, that the rules are necessary not because of "mistakes" but because CWD was detected in additional breeding facilities in spite of the rules in place, indicating that the rules were ineffective. The department also notes that the rules being replaced were the result of a negotiated process with the regulated community, many of whom strenuously resisted then, as they do now, measures advocated by the department to provide adequate assurance that CWD can be quickly detected before it can be spread. No changes were made as a result of the comment.

One commenter opposed adoption and specifically stated that the department's rules historically were designed to stop captive breeding by making it more difficult (tagging and reporting changes). The department disagrees with the comment and responds that such assertions are untrue. No changes were made as a result of the comment.

One commenter opposed adoption and specifically stated that the department seems to be trying to put deer breeders with small operations out of business because they don't have the financial resources for legal challenges or the proposed new testing requirements. The department disagrees with the comment and responds that no part of the proposed rules is intended or designed to force any permittee out of business, irrespective of the scale of operations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "TPWD and opponents of deer breeders continue to rely on subversion of the facts, bad data, and scare tactics to promulgate their propaganda campaign against deer breeders." The commenter further stated that CWD is not the threat to native or captive cervid herds that was once believed and that killing "thousands of healthy uninfected captive animals" is contradictory to the department's duty to protect wildlife resources. The department disagrees with the comment and responds that there is no conspiracy between the department and any other entity or individual to oppose deer breeding or deer breeders and that the department's efforts to manage CWD are and always have been above board, science-driven, and motivated by the desire and the duty to protect native wildlife resources from the unquestioned threat posed by CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules are harsh for deer breeders who voluntarily accept a higher standard by participating in the TAHC herd certification program because they are being treated like the breeders who do not participate in the program. The commenter stated that deer breeders "not involved with a trace facility" should have the option of asking for a herd plan. The department disagrees that the TAHC herd certification is a higher standard than the rules as adopted and notes that five of the seven facilities where CWD has been discovered since March 23, 2021 were in at least the fourth year of that program, with two of those facilities having "Certified" status. Therefore, the rules as adopted impose additional testing requirements necessary to provide minimum assurance that CWD can be detected early in any deer breeding facility, including those participating in the TAHC herd certification program. In addition, the department notes that compliance with herd plans is required for the removal of TAHC-issued quarantines and hold orders and that herd plans are not required by the rules as adopted. No changes were made as a result of the comment.

Forty-seven commenters opposed adoption on the basis that the rules are excessive, unreasonable, onerous, a bureaucratic power grab, government overreach, overstep, overkill, overreaction, abuse of power, or otherwise some kind of unrestrained exercise of governmental action. The department disagrees with the comments and responds that in addition to being a discharge of the agency's statutory duty to protect and conserve the wildlife resources of the state, the rules are predicated on sound scientific principles and were validly promulgated in accordance with all applicable statutory authority granted to the agency, specifically or generally. No changes were made as a result of the comment.

Two commenters opposed adoption and specifically stated that rules are unconstitutional. The department disagrees with the comments and responds that the rules as adopted do not violate any provision of the federal or state constitutions. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules are aggressive and over burdensome for deer breeders with closed herds. The department disagrees with the comment and responds that the rules as adopted are not more burdensome for deer breeders with closed herds. In addition, the department notes that two of the facilities where CWD has been discovered were closed herds for at least five years. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there are too many restrictions on breeders, that CWD testing "should have been done in the wild and check points 25 years ago," and that "CWD is in bordering states yet deer breeders are blamed for it." The commenter also stated that there is a live test that would prevent having to kill entire herds. The department disagrees with the comment and responds that the department promulgated rules in 2002 in response to the emergence of CWD in deer in other states and began surveillance of free-ranging deer shortly thereafter. The department also responds that CWD repeatedly has been found in Texas deer breeding facilities and the rules are not a matter of blame but of discharge of the agency's statutory duty to protect and conserve public resources. No changes were made as a result of the comment.

One commenter opposed adoption and stated that CWD is a "small incident" and the department is overreacting to "a very minor" number of cases in a way that will have major implications for the development of quality deer herds across the state. The commenter also stated that because of department negligence following the elimination of screw worm "the genetic pool of Texas deer population has dramatically decreased due to hunting pressure but now hunters and land owners have educated themselves on the valuable resource a quality deer herd represents." The commenter stated that "deer breeding has been largely responsible for the development of the genetic pool and efforts to minimize that impact by the TWD is detrimental to rebuilding the gene pool in deer herds state wide [sic]". The department disagrees with the comment and responds that CWD is not "minor" or a "small incident." The department has determined, based on scientific evidence and the impacts of CWD in other parts of the country, that CWD is an existential threat to deer populations in Texas and the economies that depend on them. The department also disagrees that there is any connection between the eradication of screwworm and deer breeding as well as the claim that deer breeding exerts any appreciable effect on native deer populations. There is a common misconception that deer breeding produces deer that are genetically fitter than indigenous deer, simply because of greater antler mass. Antler mass is simply one characteristic and is not indicative of any trait related to survival or reproductive success (i.e., genetic fitness). In any case, breeder deer are the result of line breeding of non-indigenous deer (it has always been unlawful to use deer from populations indigenous to Texas in breeding facilities) that does not occur in nature and the phylogenetic implications of breeder deer introduction to native herds are questionable, as it is a biological fact that the characteristics of organisms tend to reflect the conditions or environments where the organism evolved and that once introduced, an organism is subject to those conditions and will evolve or adapt accordingly. No changes were made as a result of the comment.

One commenter opposed adoption and stated that ante-mortem testing is too excessive for deer breeders, who "only hold 2% of the total deer population." The department disagrees with the comment and responds the percentage of the total deer population held by deer breeders is not a relevant factor in determining the degree to which ante-mortem testing should or must be utilized to mitigate the risk of transmitting CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that CWD has been around for many, many years and can be detrimental to deer, but that does not justify government overreach. The commenter also stated that recommendations are more effective than laws. The department disagrees with the comment and responds that CWD is demonstrably detrimental to deer and that the department has a statutory duty to protect this public resource. The department also responds that data obtained from the department's extensive CWD surveillance program strongly indicate that CWD, where it exists in Texas (with the possible exceptions being in the Hueco and Franklin ranges of the far-western Trans Pecos region), is a result of a recent introduction. In addition, the department disagrees that voluntary CWD surveillance would be more effective than mandatory. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that all breeder deer should be required to be visibly tagged or branded upon release. The department disagrees with the comment and responds that while visible identification of released breeder deer would facilitate epidemiological investigations and research, the regulated community adamantly opposes such measures and the department has determined visible identification, while helpful, is not absolutely critical to CWD management efforts. No changes were made as a result of the comments.

One commenter opposed adoption and stated that all movement of breeder deer should be prohibited. The department disagrees with the comment and responds that while in absolute terms such a measure would produce undeniable disease mitigation benefits, a substantial portion if not all of the regulated community depends upon the ability to move deer in order to be financially viable; thus, the department believes that the testing regime imposed by the rules as adopted, if complied with, in concert with the temporary moratorium on the issuance of t Triple T permits, will be sufficient to provide for early detection of CWD before it can be spread. No changes were made as a result of the comment.

One commenter opposed adoption and stated that deer breeding should be prohibited. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the department is required to issue a deer breeding permit to a qualified individual. No changes were made as a result of the comment.

One commenter opposed adoption and stated that counting missing deer as mortalities will give irresponsible deer breeders an easy way out. The department disagrees with the comment and responds that the timelines for collection and submission of test samples set forth in the new rules are expected to greatly reduce the instances in which unscrupulous persons might be tempted to report a mortality as an escaped. No changes were made as a result of the comment.

One commenter opposed adoption and stated that although the rules are an improvement over the current rules, the fact that movement of breeder deer is still being allowed represents an unacceptable risk of spreading CWD. The department disagrees with the comment and responds that while in absolute terms prohibiting all movement of deer would produce undeniable disease mitigation benefits, a substantial portion if not all of the regulated community depends upon the ability to move deer in order to be financially viable; thus, the department believes that the testing regime imposed by the rules as adopted, if complied with, combined with the temporary cessation of the issuance of Triple T permits, will be sufficient to provide for early detection of CWD before it can be spread. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department's duty is to protect native deer and the department should prohibit all movement of white-tailed deer until a reliable ante-mortem test is developed that is capable of clearing individual animals. The department disagrees with the comment and responds that because the timeline for the development of an ante-mortem test capable of clearing individual animals is unknown and could be lengthy, the department believes that the testing regime imposed by the rules as adopted, if complied with, combined with the temporary cessation of the issuance of Triple T permits, will be sufficient to provide for early detection of CWD before it can be spread. No changes were made as a result of the comment.

One commenter opposed adoption and stated that breeder deer should not be released where they could mix with native deer. The department disagrees with the comment and responds that Parks and Wildlife Code, Chapter 43, Subchapter L requires the department to issue a deer breeding permit to a qualified applicant and provides that one of the privileges of a deer breeding permit is the ability to release deer, which the department allows, contingent on compliance with the statutory and regulatory requirements. No changes were made as a result of the comment.

One commenter opposed adoption and stated that breeding facilities are an insult to native game and hunters. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the legislature requires the department to issue a deer breeding permit to a qualified applicant, which the commission has no authority to eliminate. No changes were made as a result of the comment.

One commenter opposed adoption and stated that deer breeding is an embarrassment and the rules are just a solution to a problem created by the department decades ago in catering to special interests. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the legislature requires the department to issue a deer breeding permit to a qualified applicant, which the commission has no authority to eliminate. No changes were made as a result of the comment.

One commenter opposed adoption and stated that deer breeding should be illegal. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the department is required to issue a deer breeding permit to a qualified applicant, which the commission has no authority to eliminate or criminalize. No changes were made as a result of the comment.

The department received 48 comments opposing in some form or fashion the provisions of the rules that require testing of breeder deer prior to release. The general tenor of the comments was that because Movement Qualified (MQ) facilities have already conducted the testing required to attain MQ status, MQ facilities (and many commenters specifically cited MQ facilities that are "closed" or not epidemiologically connected to a CWD-positive facility) should be allowed to release deer to adjoining acreage without additional live testing because the release does not pose additional threat of spreading CWD. The department disagrees with the comments and responds that introducing breeder deer to any property, contiguous or non-contiguous with a deer breeding facility, presents CWD transmission risks. The larger the release site, the greater the number of exposed acres and the greater the exposure to a population that otherwise would not have been exposed. Geographically, the risk may be relatively localized, but containment of transmission risk can dramatically change between adjacent properties. In deer breeding facilities, this CWD transmission risk can be more easily addressed because the breeder deer are available for ante-mortem testing; this provides greater confidence that CWD is not being transferred to release sites through the liberation of breeder deer. The department also notes that the terms "closed" and "connected" have specialized meanings with respect to epidemiology and are often misunderstood by laypeople. Epidemiologically, captive populations are "closed" or "unconnected" only if there are no pathways, direct or indirect, to sources of disease. In point of fact, very few breeding facilities in Texas have zero connection to the positive facilities discovered thus far. No changes were made as a result of the comment.

One commenter opposed adoption and specifically stated that deer breeders should be allowed to release breeder deer to their own personal property. The department agrees with the comment and responds that the rules as proposed do not prohibit the release of breeder deer to a permittee's personal property, provided the release site is in compliance with current rules and the breeder has complied with applicable testing requirements that allow release. No changes were made as a result of the comment.

One commenter opposed adoption and specifically stated that the increased surveillance achieved by lowering the test-eligible age, increasing the percentage of mortalities required to be tested, and increasing the minimum percentage of the herd required to be tested should provide risk mitigation of the inadvertent spread of CWD. The department disagrees with the comment and responds that reducing the test-eligible age to 12 months and requiring 100% mortality testing were already requirements of the TAHC herd certification program, but CWD was detected in participant breeding facilities anyway, two of which had the disease for more than a year prior to detection, according to diagnostic test results and other findings of the epidemiological investigation, including disease prevalence and transmission to other facilities. Increasing the minimum mortality rate from 3.6 to 5% provides no increase in detection probability for most herds because most will have experienced the minimum mortality rate and tested 100% of mortalities; the new minimum mortality rate is established to be consistent with TAHC rules and to remove a regulatory lacuna that allowed participants in the TAHC herd certification program to avoid minimum requirements established in TPWD rules. Finally, ante-mortem testing prior to release provides the most substantiative increase in CWD detection probability because it provides additional herd surveillance that would have otherwise not occurred. No changes were made as a result of the comment.

One commenter opposed adoption and stated that it is hypocritical to allow the release of deer under a Triple T permit to contiguous acreage but prohibit release of breeder deer to contiguous acreage. The department disagrees with the comment and responds that the rules as adopted suspend the issuance of Triple T permits while continuing to allow the release of breeder deer, provided the permittee is in compliance with the rules. No changes were made as a result of the comment.

One commenter opposed adoption and stated that testing of all deer prior to release is a huge undertaking for deer breeders with zero evidence that a young deer can contract this disease. The department disagrees with the comment and responds that there is no correlation between the age at which deer can contract CWD and the need to test all deer prior to release in order to prevent the spread of CWD. There is evidence of CWD transmission in utero and deer as young as six months of age have tested positive for CWD, which strongly supports the wisdom of testing all deer prior to release. No changes were made as a result of the comment.

Twenty-six commenters opposed adoption on the basis that the rules do not require any persons other than deer breeders to test deer for CWD. The commenters stated, variously, that MLDP cooperators, low-fenced ranches, Triple T and TTP permit holders, and/or all hunters should be required to test harvested deer for CWD. Similarly, four commenters stated that CWD came from the wild and has been found in the wild but the department does not mandate CWD testing for deer harvested from free-ranging populations. The department disagrees that the department's CWD surveillance strategy is inadequate with respect to deer populations other than those within breeding facilities and responds that the two are very different. In non-captive populations, every individual of the population typically remains within a small geographic range determined by the life history of the species and to some extent habitat and terrain, while breeder deer are a captive population that is highly interconnected across a huge geographical extent through human transport via trailers and from which individuals are released to the landscape. These two scenarios present very different surveillance challenges. The department's current surveillance efforts in free-ranging populations are designed to detect a diseased animal with statistical confidence at a targeted prevalence, which has been achieved in almost all regions of the state. Although testing every hunter-harvested deer would increase the number of deer sampled and tested for CWD, there is no scientific need to make such testing mandatory. The department also notes that within CWD management zones (demarcated areas where CWD has been detected in captive or free-ranging populations), all hunter harvested deer are required to be presented at check stations for CWD testing. No changes were made as a result of the comments.

Six commenters opposed adoption and stated that mandatory CWD testing on MLDP properties will cause people to terminate participation in that program. The department disagrees that any part of the rules as proposed or the rules as adopted requires or intends to require MLDP cooperators to perform mandatory CWD testing. No changes were made as a result of the comment.

One commenter stated that deer breeders have spent over $4 million in testing for CWD at their own expense since 2015, tested 80-100% of all eligible mortalities in breeder pens, and tested near 100,000 deer to date while hunter harvest was over 900,000 and the department tested 13,000 of those animals, which indicates that deer breeders are doing more than anyone else to fight CWD. The department disagrees with the comment and responds that in light of continued detection of CWD in captive herds, testing in captive herds under the current rules is clearly ineffective at providing confidence of early detection, even assuming that all deer breeders are in compliance with testing requirements. The department also responds that direct comparison of raw testing numbers between captive populations (which are artificially concentrated in densities far higher than occur in nature) and free-ranging populations is meaningless from an epidemiological and scientific perspective. No changes were made as a result of the comments.

One commenter opposed adoption and stated that CWD testing should not be mandatory for MLDP cooperators. The department disagrees with the comment and responds that neither the rules as proposed or as adopted contemplate the mandatory testing of deer by MLDP cooperators. No changes were made as a result of the comment.

One commenter opposed adoption and stated that MLDP participants should be required to test a percentage of deer harvested on MLDP properties. The commenter stated that 22 of 49 positive samples for CWD in 2020 were free-ranging deer while CWD was detected in only six of 858 deer breeding facilities, which indicates that the department is biased because it is focused on deer breeders and not on all hunting. The department disagrees with the comment and responds that the conflation of free-ranging populations with captive populations for purposes of comparing the epidemiological efficacy of regulations is misleading. The spread of CWD by the human-induced movement of deer from and between captive populations is a discrete epidemiological context that is completely dissimilar to the spread of CWD in free-ranging populations; thus, a comparison of aggregate testing numbers is meaningless. A deer in a natural population lives and dies within a certain geographical area, whereas breeder deer can and are moved by humans via trailers many dozens or even hundreds of miles between facilities. In each facility they come into contact with other deer, some or all of which may have been in other facilities and sometimes, multiple facilities, which significantly magnifies the chances of disease transmission. In fact, the department's statewide volunteer sampling effort across the state by individual landowners and hunters has been more efficacious, for purposes of achieving statistical confidence of disease prevalence, than testing within deer breeding facilities. The suggestion that MLDP properties - or any other properties, for that matter - are somehow being excluded from effective surveillance is simply not supported by facts or science. No changes were made as a result of the comment.

One commenter opposed adoption and stated that testing should be similar to what is required for populations on ranches. The department disagrees with the comment and responds that given the repeated detection of CWD within captive populations, voluntary surveillance efforts within breeding facilities could be expected to result in further spread of CWD to captive and free-ranging populations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that free ranging deer never get tested and have a higher rate. The department disagrees with the comment and responds that free-ranging populations are sampled at a sufficient rate to achieve statistical confidence that the disease would be detected where it exists at a targeted prevalence and the data indicate that there is an overall lower risk of CWD transmission from free-ranging populations than from captive herds. No changes were made as a result of the comment.

One commenter opposed adoption and stated that high fence ranches and hunting operations "have a bunch of feeders and cause high concentrations of deer" and that all hunter-harvested deer should be tested. The department agrees with the comment to the extent that any situation causing deer to come into contact with one another, especially in unnatural ways, increases the chances of disease transmission, but the fact remains that captive populations are kept in sustained contact, which is the optimum condition for disease propagation, and are widely dispersed across the landscape of the entire state as a result of human transport via trailers and release, which presents significantly higher disease transmission opportunity. No changes were made as a result of the comment.

Forty-three commenters opposed adoption and stated in some form or fashion that rules will result in undesired economic and financial outcomes. Commenters stated that the rules are costly, will put ranches out of business because they won't be able to provide hunts, will hurt the state's economy, reduce license revenue to the department, reduce hunting revenue for landowners, increase the cost of hunting opportunity because corporate hunting operations won't have access to trophy deer, lower land values, and kill job opportunities. The department disagrees with the comments and responds that although the rules will increase the cost of compliance, mainly via increased testing requirements, those costs are the minimum necessary costs to prevent CWD from being spread to additional breeding facilities or free-ranging deer populations. The department also responds that breeder deer are a very small proportion of the total deer population in the state and the overwhelming majority of hunting opportunity in Texas occurs on properties and in deer populations to which breeder deer have never been released. In addition, the department responds that land values are far more likely to be affected by the discovery of CWD on the landscape and that since deer breeding involves an infinitesimally small proportion of the state's workforce, there will be little to no impact to job opportunities. The department also notes that although people buy and sell breeder deer, once a breeder deer has been released it cannot be sold or bought. No changes were made as a result of the comments.

Eighteen commenters opposed adoption and specifically stated the rules will cause all or some deer breeders to be put out of business. The department disagrees with the comment and responds that without the availability of specific and complete financial data, it is difficult to assess a claim that the rules will force any deer breeder out of business. The department has received similar claims in response to previous department rulemaking efforts to manage CWD and notes that, based on anecdotal and publicly advertised sale prices for breeder deer and the reputed profitability of deer breeding claimed by the regulated community, it is difficult to envision any scenario in which the rules as proposed would force any deer breeder out of business, unless the deer breeder either has purchased a CWD-positive deer from another breeder or has been designated Not Movement Qualified (NMQ) as a result of failing to comply with the regulatory requirements. The department believes that most if not all deer breeders will be able to remain in business. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules "are just one more step to encourage deer breeders to get out of business. Cwd [sic] is the tool they now have to justify to regulate deer breeders out of business." The department disagrees with the comment and responds that there is not now and has never been an effort on the department's part to encourage deer breeders to get out of business and that CWD would continue to be a serious concern even in the complete absence of deer breeding activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the increase in the substitution ratio for ante-mortem testing will have a direct financial impact on their business. The department agrees with the comment and responds that although there will be a financial impact resulting from increased testing requirements, that impact is unavoidable in light of the threat posed to captive and free-ranging deer populations by CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the deer breeders contribute to the deer industry that brings money to the state and losing that revenue would be disastrous. The department disagrees with the comment and responds that most revenue from hunting in Texas is unrelated to deer breeding activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that it is "Too expensive with labor, with medicines, vet bills, death loss resulting from testing, limiting deer movement by not allowing flexibility to move deer unless tested 6-9 weeks prior, etc. " The department disagrees that the rules as adopted present an insuperable barrier to continued participation in deer breeding operations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department "needs to work together in understanding both sides to achieve the end goal - with the current rules suggested, vets are making a bundle, farmers are being suppressed, and hunters and ranchers are gonna be suppressed in years to come as the expense has to get passed on." The department agrees that cooperative efforts are the most fruitful but responds that the department has been assiduous it its efforts to involve the regulated commuintity and neither deer breeders nor anyone else is being suppressed. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules place an unnecessary and prohibitively costly burden on breeders whose ranches have no chance of having CWD in their deer or facilities. The department disagrees with the comment and responds that the rules are a necessary and reasonable response to the presence of a demonstrable threat that has been repeatedly detected in deer breeding facilities. No changes were made as a result of the comment.

Twenty-one commenters opposed adoption and stated that the current rules should be retained, offering, variously, that the current rules are effective or sufficient and there is no need for additional rules. The department disagrees with the comments and responds that the continuing discoveries of CWD in deer breeding facilities points to the conclusion that the current rules are not effective or sufficient. No changes were made as a result of the comments.

Three commenters opposed adoption and stated specifically that 14-day requirement in current rule would have caused all recent CWD detections to have been made earlier, had the requirement been in place prior to this year. The department disagrees with the comments and responds that the evidence suggests CWD was present for at least a year without being detected in at least one facility that had a history of prompt sample submission, and the department concludes that although the 14-day requirement is an improvement over the previous rules regarding sample submission times, it would not have allowed detection in some of the facilities that have since been declared positive facilities. No changes were made as a result of the comments.

Seventeen commenters opposed adoption and stated that 12,000 deer were tested under emergency rules without finding CWD. The department disagrees with the comment and responds that CWD was detected in one additional deer breeding facility under the emergency rules. The department also notes that less than 60% of breeding facilities are represented in the the ante-mortem testing that occurred under the emergency rule, which means that the remaining deer breeding facilities were being inadequately surveilled. No changes were made as a result of the comments.

Ten commenters opposed adoption and stated that testing is costly and very stressful on animals, especially during the months that testing is required in order to transport deer before deadlines. The department agrees that testing is an expense and that it necessarily involves stress on breeder deer, but responds that the testing requirements of the current rules - which reflect the department's attempt to minimize such impacts in response to similar concerns from permittees, were demonstrably ineffective in both providing for adequate disease surveillance and preventing the spread of CWD to and from deer breeding facilities. The department also notes that testing all mortalities reduces the number of ante-mortem tests needed and that the skill and experience of the practitioner are important factors in the outcome. The department also notes that neither the current rules nor the rules as proposed impose deadlines for the transport of deer, which can be moved at any time of the year provided the breeding facility is authorized to move deer, although by statute buck deer cannot be transported with antlers intact within 10 days of or during an open deer season. Finally, the rules as adopted allow for ante-mortem samples to be collected as much as eight months prior to the transfer of a breeder deer to a release site, which provides ample time to allow for sampling to occur without haste and during times of the year when cooler temperatures reduce stress on the deer. No changes were made as a result of the comment.

One commenter opposed adoption and stated that every time a live test is performed there is a chance of killing the test subject, for no better reason than to see if the animal is positive for CWD. The department agrees with the comment and responds that ante-mortem testing is allowed under the current rules at the specific request of the regulated community precisely because the only alternative is post-mortem testing, which is always fatal to the test subject. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules will put more stress on deer and increase the chances of infection. The department disagrees with the comment and responds that although stress to breeder deer is a consequence of live-animal testing required under the rules, the alternative is post-mortem testing which necessarily entails mortality of the test subject. The department was persuaded by comment from the regulated community during a previous rulemaking to allow ante-mortem testing and Texas remains the only state that accepts ante-mortem test results. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules should be tabled until less invasive testing procedures are developed and accepted. The department disagrees with the comment and responds that the department approved the use of ante-mortem testing at the request of the regulated community and remains the only state to do so. No changes were made as a result of the comment.

One commenter opposed adoption and stated that TPWD wants to require antemortem testing for deer as young as eight months of age. The commenter stated that there is no scientific evidence that a deer eight months of age would be a carrier of CWD and that most concerned individuals would consider it barbaric and potentially life threatening to subject a fawn to an antemortem rectal or tonsillar biopsy. The department disagrees with the comment and responds that CWD has been detected in deer as young as six months of age and that testing of such deer is necessary not only to provide additional assurance that CWD is not present in a breeding facility, but to provide an avenue for breeding facilities to continue to transfer deer. No changes were made as a result of the comment.

Four commenters opposed adoption and stated, variously, that the rules are not supported by science or have no scientific basis. The department disagrees with the comments and responds that the rules as adopted were developed by epidemiologists, veterinarians and biologists according to accepted and defensible methodologies for determining disease risk and appropriate mitigation strategies. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the department raises the possibility of a CWD pandemic as a scare tactic in order to justify efforts to marginalize deer breeders that "proved genetics out performed [sic] any management practice." The department disagrees with the comment and responds that the sole goal of the rules as proposed is to protect captive and free-ranging deer in Texas from a disease the empirical evidence proves has the potential to devastate those populations and the economies that depend upon them. The department also responds that it is not engaged in a competition with deer breeders to prove the virtue of any management practice. No changes were made as a result of the comment.

One commenter opposed adoption and stated that that live-animal tests are not accurate. The department disagrees with the comment and responds that live-animal tests, while not as accurate as post-mortem tests for the detection of CWD, are useful for detecting the presence of CWD in a captive population under certain circumstances. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department should do a better job of testing for CWD in free-ranging populations because it is a fact that CWD exists in free-ranging populations in states where there are no breeding facilities. The department disagrees with the comment and responds that not only is the surveillance effort with respect to free-ranging populations meeting its goals of providing statistical certainty that CWD would be detected where present, the fact is that CWD has been repeatedly detected in breeding facilities in Texas, which are regulated by the department, and the department has a statutory duty to protect Texas' wildlife resources. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "TPWD continues to write rules and regulations for CWD monitoring that is antiquated based on current knowledge. Using research and data from across the nation it's easy to see that CWD is not the threat to humans or wildlife populations that TPWD proposes it to be. We have know [sic] CWD to exist for more than 50 years, yet there is not a single case of a human contracting it. There are more deer and Elk [sic] roaming the United States now than there was when CWD was first discovered." The department disagrees with the comment and responds that there is no question that CWD is in fact a threat and that the department is not aware of any research that would suggest otherwise. The department also notes that the rules are in no way predicated on a threat to human health and that the rules are intended to protect wildlife resources in Texas. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "[T]he entire premise is based on positive tests not deaths of deer ...many deer test positive but live until 6 plus years which most are harvested ...". The department disagrees with the comment and responds that the premise of the rules is that deer exposed to or infected with CWD are an existential threat to free-ranging and captive deer populations and therefore an effective surveillance effort is necessary. The department also responds that under current rule a breeding facility where a deer tests positive for CWD is automatically prohibited from releasing any deer and therefore there is no way for such deer to be harvested and that such release is a criminal act. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department should look "at the gene research in sheep and new studies in Alberta F and D genes ...those deer cant get CWD as research proves ....deer breeders can help with that ...but NO Texas A&M needs testng $$$ and biologists have to prove they are smarter than a dirty rotten deer breeder." The department disagrees with the comment and responds that there is no research the department is aware of that concludes or suggests the existence of genetic immunity to CWD in any population of susceptible species. The department also responds that it welcomes any contribution to research efforts from the regulated community and that the sole motivation for the rules as adopted is to protect captive and free-ranging deer in Texas from a disease the empirical evidence proves has the potential to devastate those populations and the economies that depend upon them. No changes were made as a result of the comment.

One commenter opposed adoption and, to the extent that the department is able to understand the comment, stated that the department's approach to CWD in deer breeding facilities is to kill all the deer rather than live-testing them, which is wrong and not based on science. The department disagrees with the comment and responds that the rules as adopted were developed by epidemiologists, veterinarians and biologists according to accepted and defensible methodologies for determining disease risk and appropriate mitigation strategies. The department also responds that it is a scientific fact that the detection of CWD within a captive population means that every deer within that facility has been exposed, potentially infected, and potentially capable of spreading CWD to unexposed populations. Because research demonstrates that CWD can take some time to become detectable and that CWD prions are known to be environmentally persistent, the optimal way to prevent CWD from being spread from a facility where it has been detected is to depopulate the facility and test every deer. No changes were made as a result of the comment.

One commenter opposed adoption and stated Texas A&M has made and will make significant revenue because of the testing requirements of the rules. The department neither agrees nor disagrees with the comment and responds that the financial particulars of Texas A&M University do not play a role in the department's formulations of disease management strategies. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "the deck is stacked against deer breeders" within the department's CWD Task Force, that the department knows it is unfair, and that comments are not sent to the commission. The department disagrees with the comment and responds that CWD is a threat to all deer in the state; therefore, the department's CWD Task Force represents a cross-section of interested parties, including landowners, hunters, veterinarians, and epidemiologists, as well as members of the deer breeding community, which the department believes is a rational approach that does not prejudice any point of view or perspective. The department further responds that the role of the CWD Task Force is strictly advisory and the ultimate decision with respect to the promulgation of regulations lies with the commission. Finally, the department notes that each member of the commission has received a verbatim copy of all public comment. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "TP&W can make up any statements or reports they want that fits their narrative. For example "There will be no adverse economic impacts on sales of deer for MQ facilities as a result of the proposed new rules." This is an absolute inaccurate statement even by their own admission for the added cost for all of the ante-mortem testing. They try to down play the cost to do the testing by using the lowest possible numbers which are not realistic." The commenter continued in a similar vein, noting the difficulties in contracting veterinary services, issues with bad samples, bottlenecks at the labs, and obtaining medications and delivery instruments. The commenter stated that a doe currently sold for $1,000 will now cost $1,500 and mortalities occurring as a result of live-testing represent a complete sales loss. The department disagrees that there is any attempt to mislead or be deceptive with respect to the department's intent, goals, or statements. The statement in question is accurate. The department understands "adverse" to mean something that prevents or arrests an activity or makes it exceedingly difficult to continue. Deer breeders who comply with testing requirements and are cleared to transfer deer are free to buy and sell deer. From anecdotal evidence, publicly available information, and the claims of the regulated community regarding the sales prices of individual deer, the department concludes that although there will be economic impacts to MQ facilities as a result of the rules, those impacts will not prevent breeders from remaining in business. The department further responds that the various services and products needed to comply the rules as adopted are not ordinarily difficult to obtain in almost all parts of the state, but do vary in availability and cost from place to place and region to region. For instance, a facility in a county or locality with few veterinarians might have to contract with a veterinarian willing to travel; however, this would be true for any other person in need of veterinary services as well. The department further notes that it is not uncommon in most business models to base the sales price of goods and services on the cost of production, that many factors continuously impinge upon those costs, and that given the anecdotal evidence, publicly available information, and claims of the regulated community regarding the sales prices of individual deer, there continues to be a reasonable opportunity for MQ facilities to generate profit and maintain current profitability. No changes were made as a result of the comment.

Thirteen commenters opposed adoption and stated, variously, that more deer die of EHD, Blue Tongue, anthrax, pneumonia and/or cars every year than CWD. The department neither agrees nor disagrees with the comment and responds that the purpose of the rules is to protect free-ranging and captive deer populations from CWD and therefore the number of fatalities occurring in deer breeding facilities or in free-ranging populations as a result of other diseases, especially non-reportable diseases, and vehicles, is irrelevant with respect to the purpose of the rules. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the "idea of having space between pens is crazy, costly, misuse of land, abuse and unhealthy for fawns" and that "30 feet between pens is also a food source that the fawns will not have access to." To the extent that the department is able to determine the context of the comment, the department disagrees that the rules establish or require any sort of space between pens used to hold breeder deer. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules do not address exotics that carry CWD and implied that there should be an explanation for the department's lack of authority to do so. The department agrees that it has nostatutory authority to regulate disease management in exotic livestock and responds that the Texas Legislature has delegated that authority to the Texas Animal Health Commission. No changes were made as a result of the comment.

One commenter opposed adoption and stated that elk, sika, and red deer are traded freely without testing. The department neither agrees nor disagrees with the comment and responds that the department's regulatory authority is restricted to white-tailed and mule deer; thus, while concerns regarding the ramifications associated with CWD in other susceptible species are certainly valid, the department does not possess the statutory authority to regulate those species. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the requirement for the submission of test samples from mortalities within seven days of discovery is not enough time for facilities that are "far away from town." The department disagrees with the comment and responds that even the most remote reaches of the state are within a day's drive of a post office or shipping facility. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the current requirement for mortalities to be tested within 14 days is sufficient to detect CWD without requiring the testing of deer prior to release. The department disagrees with the comments and responds that the evidence suggests that CWD likely had been in some of the positive facilities for multiple years, indicating a significant delay/failure in detection. As all of those facilities (like many breeder herds in Texas) had substantial portions of their inventories being released each year without any required testing, it is very likely that these large release populations hampered the department's efforts to detect CWD in these facilities in a timely fashion. The department believes that ante-mortem testing before release would have significantly improved the detection probability and help prevent the spread of CWD. The seven-day submission rule may have prevented two trace-out herds from becoming infected, but it would not have prevented a third CWD-positive trace-out herd. In one index facility CWD was detected via ante-mortem rectal biopsy testing, underscoring its utility as a general surveillance tool. No changes were made as a result of the comments.

Two commenters opposed adoption and stated that requiring mortalities to be reported in one day is unreasonable and onerous because most deer breeders do not live on the premises. The department disagrees with the comments and responds that the provision the commenter refers to is applicable only to facilities that are epidemiologically connected to facilities where CWD has been found and therefore represent a significant risk of spreading CWD until they can be cleared. The department also responds that daily inspection of deer in permitted deer breeding facilities increases the probability that viable samples for CWD testing can be colleted. No changes were made as a result of the comments.

One commenter opposed adoption and stated that it is unrealistic to expect all mortalities 12 months and older as well as all release deer be tested. The commenter stated that it is not physically possible to find dead deer in time to extract valid samples. The department disagrees with the comment and responds that it is reasonable to expect persons who hold deer in captivity under a permit to monitor those captive animals closely enough to discover mortalities promptly and that the rules allow for ante-mortem test results to be substituted for missed mortalities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the "Public Benefit/Cost Notes" section of the proposed preamble is grossly inaccurate because it states that there will be no adverse economic impact on MQ facilities. The commenter continued "If breeding pens become too populated, the new proposed rules require anti-mortem testing before the excess test eligible breeder deer can released to adjoining property owned by the breeder. A realistic estimate of the total cost of the testing process would range between $400-$500 per animal unit. It is also common for a breeder to "'grow out' fawns so their survival rate is enhanced and a typical business model has been to retain doe fawns until they are yearlings and buck fawns until they are two years old." The commenter also stated that making the deer breeding business unprofitable because of unreasonable rules constitutes a government taking because "a breeder has invested accountable funds in developing his enhanced genetic breeding herd, constructed deer handling facilities and purchased equipment to efficiently maintain the health and wellbeing of the permitted breeder herd. Therefore both a taking of the breeder's investment by dramatically reducing its value and damages to the remainder could very well be claimed if the current proposed rules are adopted." The department disagrees with the comment and responds that, as noted in the proposed preamble, although the rules would result in an increased cost of compliance for deer breeders, the rules do not directly affect the sales prices of breeder deer, which are a business matter between buyer and seller; in most business models, increased operational costs are recovered by increasing the price of the good or service being offered, at the discretion of the operator. The department's estimates of the cost of testing are reasonably reflective of actual costs, which the department understands may vary. The department also responds it is the responsibility of individual deer breeders to determine the capacity of their facility and to avoid allowing deer within the facility to produce offspring in excess of what the breeder can responsibly manage or dispose of. Similarly, issues surrounding the practices of different breeders with respect to retention of deer and when or at what life stage a deer is transferred for whatever reason are solely the province of the permittee; the department's concern is that efficacious surveillance be maintained at all times within deer breeding facilities and especially prior to transfer. The department disagrees that the rules as adopted constitute a taking, as no component of the rule results is a governmental seizure of private property nor a restriction of the use of private property to the extent that the owner is effectively deprived of all economically reasonable use or value of their property. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there will be an adverse economic impact on persons required to comply with the rules as proposed. The department agrees that the rules will result in increased testing costs and may result is lost sales for deer breeders, but that impact will not prevent any deer breeder from continuation of deer breeding activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses and that the impact of department rules has forced deer breeders out of business. The department agrees that that an economic impact statement and a regulatory flexibility analysis are required for rules that may have a direct adverse economic impact on small and microbusinesses. The department has complied with that requirement. The department disagrees that the cost of compliance with the rules as adopted or previous rules have either forced deer breeders out of business or are the sole reason deer breeders have chosen to stop deer breeding activities. The department considers that deer breeders, like all businesses subject to regulation, may choose to cease operations for a variety of reasons, including decisions to pursue other challenges, poor business management decisions, connectivity to CWD-positive herds, failure to remain competitive, and other factors. No changes were made as a result of the comment.

One commenter opposed adoption and stated disagreement with the department determination that "there will be no effect on rural communities." The commenter proceeded to enumerate the value of purchases at hardware and feed stores, the employment of "three families," and referenced the purchase of groceries, gas, supplies and meals in the locality, asserting the generation of greater than five million dollars of economic impact in the community. The commenter concluded by stating "[W]hen the majority of the breeders are forced out of business it will have a major impact on small communities around the state." The department disagrees that deer breeding is a generally significant driver of economic activity at either the micro or macro level in rural communities. Government Code, Chapter 2006 defines a rural community as "a municipality with a population of less than 25,000 people." There are over 1,000 such municipalities in Texas. There are 941 deer breeding facilities in Texas. Most are not located within a municipal jurisdiction and therefore do not meet the definition provided in Government Code. Nonetheless, the primary drivers of economic activity in rural communities are, according to various sources, accommodation and food service, retail trade, health care, government, natural resource extraction (mining, oil and gas, timber, etc.), construction, and professional, scientific, and technical services. The department also responds that the rules as adopted are not expected to cause a majority of deer breeders to cease operations. No changes were made as a result of the comment.

One commenter opposed adoption and stated the law should apply equally regardless of fence height. The department disagrees with the comment and responds that the rules are not predicated on fence height, but on the epidemiological dictates presented by captive populations possessed pursuant to deer breeding permits. No changes were made as a result of the comment.

One commenter opposed adoption and stated that testing shouldn't be mandatory. The department disagrees with the comment and responds that voluntary testing is highly unlikely to be efficacious and no testing would be disastrous, as there is definitive evidence that CWD is present in Texas breeder deer and has been spread. No changes were made as a result of the comment.

One commenter opposed adoption and stated that ear tags should not be required for released deer following ante-mortem testing because deer breeders are testing more than anyone else. The department disagrees with the comment and responds that the only tagging requirement imposed by the rules as adopted applies to deer being released to or from a facility that has been epidemiologically connected to a CWD positive facility, which is necessary to quickly identify such deer in the event that additional epidemiological investigations become necessary. The department also responds that, as noted elsewhere in this preamble, the level of CWD testing performed on captive herds has not been more effective in detecting CWD where it exists than the department CWD surveillance efforts within free-ranging populations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the origins of CWD should be determined before rules are imposed. The department disagrees with the comment and responds that acting quickly to detect and contain the disease wherever it exists is far more important than determining the origin of the disease, which, although important, could take years. Without rules, especially rules governing the human-induced non-natural movement of live deer, the disease could spread with catastrophic effect. No changes were made as a result of the comment.

One commenter opposed adoption and stated that if deer breeders are forced to close the department will lose that surveillance effort. The department disagrees with the comment and responds that when a facility closes, there are no longer any deer to monitor within that facility. No changes were made as a result of the comment.

One commenter opposed adoption and stated that nothing should be done to stop CWD and that nature should be allowed to take its course. The department disagrees with the comment and responds that the department has a statutory obligation to protect wildlife resources and allowing CWD to spread unchecked will result in significant harm to captive and free-ranging deer population. No changes were made as a result of the comment.

One commenter opposed adoption and stated the rules are not justified given the minuscule positivity rate for CWD. The department disagrees with the comment and responds the presence of CWD in even one animal is a threat to captive and free-ranging cervid populations in the state and justifies a robust response to detect and contain it. No changes were made as a result of the comment.

Three commenters opposed adoption and stated that CWD is actually or likely scrapie and not a distinctly separate disease. The department disagrees with the comment and responds that scrapie and CWD are similar but separate prion diseases. Regardless, the management strategies adopted are necessary to detect and contain the prion disease that has been detected in seven permitted deer breeding facilities thus far in 2021. No changes were made as a result of the comments.

One commenter opposed adoption and stated that "western blot should be required." The department disagrees with the comment and responds that the western blot test is not an appropriate or readily available diagnostic tool and that immunohistochemistry is the USDA-accepted confirmatory test for CWD. Nonetheless, the department has submitted samples, including many CWD-positive samples, for CWD-strain typing, which involves western blot. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "science shows not enough copper or the right kind of copper is what the problem is not some wild crazy disease that's going to kill all the deer." The department disagrees with the comment and responds that there is no scientifically accepted argument that CWD is related to the presence, absence, or type of copper in deer. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules will eliminate small operations and create "a more monopolistic market because you got rid of the small operation competition." The commenter further elaborated to suggest that only the super-wealthy would be able to participate in a monopolized trophy market. The department disagrees with the comment and responds that deer breeders already have what amounts to a monopoly, as no other persons are legally able to buy and sell deer in Texas, and that the size of any given breeding operation is largely a matter of the degree to which a person desires or is able to finance such activities. The department also responds that many if not most hunters are interested in more aspects of deer hunting than the acquisition of trophies and many trophy hunters prefer deer that have not been produced by means of animal husbandry. No changes were made as a result of the comment.

One commenter opposed adoption and stated that that many deer breeders are motivated not by profit but by a desire to "keep the gene pool in balance." The department disagrees with the comment and responds that based on observed historical public comment, testimony, advertising, and anecdotal evidence, most if not all deer breeders desire to make a profit. The department also responds that the gene pool is the total genetic identity of a population and the addition of a few thousand individuals that have been line bred for a specific characteristic that does not provide any survival advantage (and in fact probably selects for a less than average lifespan) to a population of many millions is unlikely to result in any detectable contribution to the genetic diversity of the population. No changes were made as a result of the comment.

One commenter opposed adoption and stated that if deer breeding goes away there will be no more deer. The department disagrees with the comment and responds that deer breeding is unrelated to the survival of deer in Texas, except to the extent that the unchecked spread of CWD could adversely impact the health of free-ranging and captive deer populations in the state. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules amount to a tax on deer breeders. The department disagrees with the comment and responds the rules are not a tax but an effort to protect captive and free-ranging deer from the threat of CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules shouldn't apply to breeders because deer are in a controlled environment, while free-range deer can go wherever they want and spread CWD. The department disagrees with the comment and responds that the fundamental difference between breeder deer and deer in free-ranging populations is that deer in free-ranging populations are delimited by the geographical extent that they are able to move on their own and their contact with other deer is delimited accordingly, whereas breeder deer are intermingled with other breeder deer and transported to hundreds if not thousands of locations where they are able to come into contact with other deer, which presents a significant increase in the probability of disease transmission. No changes were made as a result of the comment.

One commenter opposed adoption and stated that CWD should be managed by TAHC because TPWD doesn't manage disease in quail, exotics, turkey, wild horses or other animals. The department disagrees with the comment and responds that quail and turkey are species regulated by the department, while the other species mentioned by the commenter are not. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules will limit rancher's ability to improve genetics. The department disagrees with the comment and responds that there is a common misconception that deer breeding produces deer that are genetically fitter than indigenous deer, simply because of greater antler mass. Antler mass is simply one characteristic and is not indicative of any trait related to survival or reproductive success (i.e., genetic fitness). In any case, breeder deer are the result of line breeding of non-indigenous deer (it has always been unlawful to use deer from populations indigenous to Texas in breeding facilities) that does not occur in nature and the phylogenetic implications of breeder deer introduction to native herds are questionable, as it is a biological fact that the characteristics of organisms tend to reflect the conditions or environments where the organism evolved and that once introduced, an organism is subject to those conditions and will evolve or adapt accordingly. No changes were made as a result of the comment.

One commenter opposed adoption and stated that ante-mortem testing should count towards MQ qualifications and release. The department agrees with the comment and responds that the rules allow ante-mortem test results to be used to satisfy release testing requirements within certain time parameters. No changes were made as a result of the comment.

One commenter opposed adoption and stated that deer breeders are already compliant. The department disagrees that the rules are necessary because of compliance issues and stresses that although there are unscrupulous persons who consciously violate and attempt to evade CWD detection, the more important issue is having effective rules that provide assurance of early detection of CWD in breeding facilities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the terms "captive" and "free-ranging" are meaningless because all breeder deer came from wild populations. The department disagrees with the comment and replies that because it has never been lawful in Texas to capture and confine native deer for use in deer breeding facilities, all breeder deer have to have originated in wild populations, but in other states, making the distinction appropriate. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the preamble for the proposed rules didn't address the increase in cost of compliance associated with the increased ante-mortem substitution ratio, the decreased minimum eligible age for testing, or the required post-mortem testing in trace herds. The commenter also stated that the department did not address the cost of lost sales for breeding facilities designated NMQ. The department disagrees with the comment and responds that the preamble for the proposed rule did in fact address the increased cost of compliance associated with testing by estimating a 20 percent increase in cost, which refers to all testing required by the rules regardless of scenario. The preamble for the proposed rule did state that possible loss of sales could be anticipated for trace facilities designated NMQ and noted that the rules provided avenues for such facilities to gain MQ status. No changes were made as a result of the comments.

One commenter opposed adoption and stated that deer breeders treat the deer in their facilities like family and would do anything for them and "more rules just pushes [sic] these land stewards out of business." The department disagrees with the comment and responds that deer breeding is animal husbandry, not wildlife conservation and that the rules are necessary for the department to discharge its duty to protect wildlife resources. No changes were made as a result of the comment.

Four commenters opposed adoption and stated that wild deer movement should not be lumped in with breeder deer. The department is unable to ascertain the point of the comment, but disagrees that the rules conflate captive populations with free-ranging populations for disease management purposes. No changes were made as a result of the comment.

One commenter opposed adoption and stated that representatives of the regulated community offered proposed regulations that were totally ignored. The commenter stated "the Federal rule and its accompanying program standards were meant to control CWD, not eradicate it. Instead of a control program, TPWD is using it to eradicate deer breeders. If these proposed regulations are passed as written, Texas will have the distinction of possessing the most onerous rules in the deer industry, which again will not eradicate the disease but will most assuredly drive many breeders financially out of business." The department disagrees with the comment and responds, first, that the proposed regulation alluded to by the commenter were abjectly insufficient to provide assurances for the early detection and containment of CWD in breeding facilities, and second, that the department is obliged to comply with applicable federal law and adheres to the federal recommendations with respect to CWD program standards to guide epidemiological investigations and CWD response efforts. Those standards are used nationwide and are recommended by the USDA, but the situation (degree of deer breeding, environment, amount of hunters, deer population, etc.) in each state is very different; thus, the standards give significant latitude to states to determine response. In Texas, the overall prevalence (free-ranging or captive populations) of CWD is still low, unlike many other states. Consequently, the department prioritizes transmission mitigation strategies (ante-mortem testing prior to release, carcass movement restrictions, prohibition on importation of white-tailed and mule deer, etc.) and rapid CWD response (depopulation of positive herds, removal of trace animals, ante-mortem testing trace herds, etc.) to contain CWD and keep prevalence low. Actions that may be viewed as "eradication" efforts by deer breeders (such as depopulation, five-year quarantines, whole-herd ante-mortem testing, etc.) are performed because CWD has made recent incursions into areas where the disease has never been detected. By responding swiftly and aggressively to these incursions, the department hopes to extirpate CWD locally before it can propagate and affect captive or free-ranging populations. The department also notes that complete CWD eradication in Texas is not the department's goal and is not feasible with the CWD management tools currently available; however, the department has a statutory duty to protect wildlife resources, which is reflected in risk-based measures that mitigate CWD transmission, contain the disease where possible, and protect Texas' hunting heritage. No changes were made as a result of the comment.

One commenter opposed adoption and specifically stated that "very little is and has been done by law enforcement to "go after" the abusers or bad apples that create the problems. Sorry but TPWD law enforcement has continued to deteriorate." The department disagrees with the comment and responds that the rules are not necessary because of compliance issues and stresses that although there are unscrupulous persons who consciously violate and attempt to evade CWD detection, the more important issue is having effective rules that provide assurance of early detection of CWD in breeding facilities. The department also disagrees that there has been any deterioration or reduction in department law enforcement efforts with respect to deer breeders. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department should be focused on the "bad guys" instead of lumping all deer breeders together. The department disagrees with the comment and responds, first, that the rules apply to all deer breeders equally and are an attempt to manage the threat of a dangerous disease, not an attempt to persecute any deer breeder. The rules as adopted were promulgated because the previous rules were insufficient. Therefore, more stringent rules are necessary to protect captive and free-ranging deer populations from CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that 97% of deer breeders are compliant with regulations and have "voluntarily enacted strict surveillance on our deer herds to position ourselves to survive in the industry and continue to protect CWD from our herds." The department disagrees with the comment and responds that the compliance figure cited even if accurate does not negate the fact that CWD continues to be detected in deer breeding facilities. No changes were made as a result of the comment.

Three commenters opposed adoption and stated, essentially, that it is impossible to protect free-ranging deer populations from CWD because CWD-positive deer can come across the borders of neighboring states. The department disagrees with the comment and responds that a robust, continuous surveillance effort has now been in place in Texas for many years, which enables the department to detect and respond to CWD emergence if and when it should occur. No changes were made as a result of the comment.

One commenter opposed adoption and stated that despite the department's claims that the rules are risk-based, they are not because "[R]isk based relies on two factors; consequence and likelihood. If you look at the breeding operations you will see that there are many breeders that are negatively affected by the new rule that are "no risk" to the state of Texas. However, your one size fits all approach is in direct conflict to risk based." The department disagrees with the comment and responds that there continues to be a persistent misunderstanding of the meanings of certain terms as they pertain to epidemiology. In an epidemiological context, risk is not a matter of calculated likelihood, as it is, for instance, with insurance for the purposes of transferring or distributing financial liability, but of the possibility that disease can be transmitted. Many people believe that there are a large number of deer breeding facilities that are "unconnected" to index and trace facilities, but due to several factors, including the extensive documented interconnectivity of deer breeding facilities, release sites, and veterinary practitioners, very few breeding facilities in the state have literally zero connection to all other breeding facilities. Additionally, two of the facilities in which CWD was detected in 2021 had not acquired deer from other facilities in more than five years, which the department assumes the commentor would consider "unconnected" to other facilities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that deer older than the incubation period for CWD should not have to be euthanized. The commenter also stated that the incubation period should be 42 months instead of 36 months, which could save the lives of many deer and protect a lot of breeders from unnecessary death loss. The department disagrees with the comment and responds that the time between when a deer is exposed to CWD and the disease can first be detected if the deer is infected (exposure period) can occur at any time during a deer's lifespan. In addition, the department believes 36-month exposure period is sufficient for the whole-herd ante-mortem test requirements for trace-out breeding facilities provided for in the rules as adopted. No changes were made as a result of the comment.

One commener opposed adoption and stated that the rule should require the submission of the retropharyngeal lymph node (RLN), accompanied by the obex if available. The commenter stated that the RLN is not as fragile as the obex tissue and that permittees should get credit for a post-mortem test if the RLN is viable but the obex is not. The department disagrees with the comment and responds that CWD in white-tailed deer and mule deer is typically detected in the RLN sooner than in the obex and the department therefore reasons that requiring the submission of the RLN in addition to the obex will result in earlier detection of CWD positive deer and increase the efficacy of post-mortem CWD testing. In addition, by requiring the submission of both tissues, the possibility of wasted test effort is reduced. For example, if an obex from a deer yields inconclusive post-mortem testing results, an RLN from the same animal may not. Finally, the department notes that making submission of the obex optional would likely result in permittees choosing not to submit the obex at all, which confounds the goal of the department. No changes were made as a result of the comment.

One commenter opposed adoption and stated that deer breeders have done everything asked of them and the state just responds with more rules and testing. The department disagrees with the comment and responds that the rules are not necessary because of compliance issues and stresses that although there are unscrupulous persons who consciously violate and attempt to evade CWD detection, the more important issue is having effective rules that provide assurance of early detection of CWD in breeding facilities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department should work with TAHC to develop individual herd plans for each deer breeder. The department neither agrees nor disagrees with the comment and responds that compliance with herd plans is required for the removal of TAHC issued quarantines and hold orders. No changes were made as a result of the comment.

One commenter opposed adoption and stated that instead of the proposed rules, the department should require testing "100% or a random selection in each pen as a audit every third year to spread out those costs to help the farmers. " The department disagrees with the comment and responds that random sampling is grossly ineffective at preventing the spread of disease in populations that are transferred as frequently as breeder deer are. No changes were made as a result of the comment.

One commenter opposed adoption and stated that it is not possible to collect samples and receive a "not detected" on 100% of eligible mortalities because the lab was unable to test them or "that they were eligible when they were. In each case, our veterinarian sent the entire heads in." The department disagrees that the rules are responsible for errors in collection or preparation of samples. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "the department is ruining things for people who are genuinely trying to do the right thing and improve wildlife." The department disagrees with the comment and responds that the rules as proposed are designed to protect captive and free-ranging deer populations, are completely science-based, and are not motivated by any consideration other than the protection of indigenous public resources. No changes were made as a result of the comment.

The department received 48 comments opposing proposed provisions that implemented a moratorium on the issuance of Triple T permits. Of the 48 comments, 25 offered a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that Triple T is a useful tool and shouldn't be eliminated because of mismanagement by breeder facilities. The department agrees that Triple T is a valuable tool but disagrees that the department intends to eliminate it. The rule as adopted imposes a temporary moratorium on Triple T permit issuance until the department in cooperation with stakeholder groups is able to develop efficacious methodologies for assuring that deer movement under the permit is not inadvertently spreading CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Triple T program is an amazing tool and changing it will wipe out small businesses that serve hunters and result in massive destruction on ranches with surplus population that should be shared with those in need. The department agrees that the Triple T permit is a valuable tool but disagrees that a temporary moratorium on permit issuance will either wipe out small businesses, result in significant overpopulation issues, or "hurt those in need." The purpose of the Triple T permit is to allow adjustments in deer populations for better wildlife management and the permits may be issued only if recommended by wildlife stocking plans approved by the department for both the origin and the destination of the deer. It is not intended to function as a business enhancement tool or as a means of distributing deer to those who want deer. The moratorium imposed by the rules as adopted is intended to allow the department in cooperation with stakeholder groups to develop efficacious methodologies for assuring that deer movement under the permit is not spreading CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Triple T program is successful and increases the value and aesthetics of ranches. The department agrees that the Triple T program has been successful and neither agrees nor disagrees with the remainder of the comment. No changes were made as a result of the comment.

One commenter opposed adoption and stated that a property that properly tests for CWD should "face the same standards as a property allowed to transport deer." The department understands the intent of the comment to be that the disease management requirements should apply equally to both source and destinations for all deer transfers. The department agrees with the comment and responds that efficacious disease management protocols for both the source and the destination of deer are crucial to stopping the spread of CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that suspension of the Triple T program is a "taking of land rights and values without proper representation" and has nothing to do with breeder deer. The department agrees that the Triple T program is not related to deer breeding but disagrees that the rules as adopted constitute a taking of land rights and values, as the rules do not restrict or limit a landowner's right to the property that would otherwise exist in the absence of the rules. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "deer moved by TTT are tested and clean of any TSE or other malady." The commenter further stated that landowners need Triple T deer for management. The department agrees that the Triple T program is a valuable deer management tool, but disagrees that under current rule there is sufficient assurance that transplanted deer are free of TSEs. The purpose of the temporary moratorium on Triple T permit issuance is to allow time for the department in cooperation with stakeholder groups to develop efficacious methodologies for assuring that deer movement under the permit is not spreading CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Triple T program has been very important and is beneficial to landowners as well as the companies that raise and sell deer. The department agrees that the Triple T program is useful to landowners but disagrees that there is or can be any buying or selling of deer under a Triple T permit, which by statute is criminal conduct. No changes were made as a result of the comment.

One commenter opposed adoption and stated that Triple T should not be eliminated because "[T]hose ranches that have never introduced genetics to their ranch and have 100% native herds under high fence should still be permitted to donate deer to other ranches that wish to also maintain 100% native herds." The department disagrees that the rule as adopted eliminates the Triple T program. Instead, it provides for a temporary moratorium to allow the department in cooperation with stakeholder groups to develop efficacious methodologies for assuring that deer movement under the permit is not spreading CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that Triple T permits should be suspended for one year to allow time for more research and study, not done away with. The department disagrees that it intends or ever intended to eliminate the Triple T program. No changes were made as a result of the comment.

One commenter opposed adoption and stated that Triple T is the safest and most native way to enhance deer herds and that eliminating the ability to Triple T will greatly hurt ranch owners. The department disagrees that the rule as adopted eliminates Triple T permits or that the department intends to eliminate the Triple T program. No changes were made as a result of the comment.

One commenter opposed adoption and stated that it makes no sense to stop the movement of healthy deer from one property to another and the deer are being moved to high fence ranches so there is no mixture with the states [sic] free range deer herd. The commenter further stated "[E]ven if there was a problem it would be isolated to that one property and the program is necessary as an alternative to having to buy expensive deer from breeders." The department disagrees with the comment and responds that all deer moved under Triple T permits are the property of the people of the state and that human-induced artificial movement of deer is a known factor in the spread of CWD, which is why the rule as adopted imposes a temporary moratorium on Triple T permit issuance to allow the department in cooperation with stakeholder groups to develop efficacious methodologies for assuring that deer movement under the permit is not spreading CWD. In addition, the department responds that there is no requirement that a Triple T release site be high fenced. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Triple T program should not be cancelled because it is very important and it will have a dire effect on herd management plans that have been working well. The department agrees that the Triple T program should not be cancelled and responds that the rule as adopted imposes a temporary moratorium on Triple T permit issuance to allow the department in cooperation with stakeholder groups to develop efficacious methodologies for assuring that deer movement under the permit is not spreading CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that when Triple T is utilized on free ranging native deer, the danger of spreading CWD is minimal given the precautions that are now mandated. The department disagrees with the comment and responds that current rules are not sufficient to provide assurances that Triple T activities do not spread CWD, which is why the rule as adopted imposes a temporary moratorium on Triple T permit issuance to allow the department in cooperation with stakeholder groups to develop efficacious methodologies for assuring that deer movement under the permit is not spreading CWD. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules should only apply to deer breeders, movement of wild deer already has plenty of testing requirements as is, and the department is being secretive and dishonest by including Triple T permits in the rulemaking. The department disagrees with the comment and responds that the rules are a comprehensive regulatory strategy for minimizing the risk of further spread of CWD in captive and free ranging herds. The department also responds that the rules were validly promulgated and well publicized, including the required publication in the Texas Register 30 days prior to commission action, solicitation of public comment on the department's website, and numerous press releases. No changes were made as a result of the comment.

One commenter opposed adoption and stated that CWD testing has already been imposed on trap sites for the last couple of years and that suspension of the Triple T program will hurt landowners' ability to manage their white-tailed deer population because the deer that could be transferred using the Triple T permit will now need to be removed by hunting and are no longer available to assist other landowners in improving their white-tailed deer herds. The department disagrees with the comment and responds that current rules are insufficient for providing assurance that CWD is not spread via Triple T permit activities and that the permit was never intended to function purely as a means of removing surplus populations. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the Triple T Permit is the most valuable permit offered to landowners and "is being lumped erroneously and dishonestly in with breeder deer." The department agrees that the Triple T program is valuable but disagrees that the department is either in error or being dishonest in determining that the current CWD management rules are insufficient for providing assurance that CWD is not spread via Triple T permit activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that without the Triple T program there is no way to make a living and support a family. The commenter also stated that the department's constant attack on the hunting industry has damaged or destroyed folks livelihoods. The department disagrees with the comment and responds that the Triple T program is a game management tool, that the rules as adopted are intended to protect wildlife resources and that buying or selling deer pursuant to a Triple T permit is by statute criminal conduct. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules will prevent people from moving wildlife for population growth and the Triple T permits allow growth of ranches across Texas which in turn positively affects the agricultural growth and prosperity of the state. The commenter also stated that "[R]emoving the TTT permits will keep ranchers from buying breeding deer and thus improving the deer population in the state of Texas [sic]." The department disagrees with the comment and responds that the intent of the Triple T program is to allow for better game management and not to encourage population growth except in those instances where populations have been severely impacted following a disease event such as an outbreak of anthrax, and that buying or selling deer pursuant to a Triple T permit is by statute criminal conduct. No changes were made as result of the comment.

One commenter opposed adoption and stated that the ramifications of this action would/could be catastrophic to current or potential landowners, outfitters, and the cities and towns that rely on deer hunting and the herds that are required. The department disagrees with the comment and responds that a temporary moratorium on Triple T permit issuance will not be catastrophic to anyone. No changes were made as a result of the comment.

One commenter opposed adoption and stated that programs like Triple T have allowed deer to become plentiful again, there are many parts of the state that still struggle with deer numbers, and removal of Triple T opportunity forces people to use deer breeders as the source of deer. The department disagrees with the comment and responds that there are very few parts of the state where deer populations are not at or above carrying capacity and that a temporary moratorium on Triple T permit issuance should not result in the need to purchase breeder deer solely for the purpose of effective wildlife management. No changes were made as a result of the comment.

One commenter opposed adoption and stated the Triple T program should not be cancelled and the department "makes no effort to give strict options to safely continue the practice while it protects breeder facilities that have been a key problem for the spread of cwd [sic]". The commenter also stated that "there is no reason why a large ranch or high fenced non breeding [sic] ranch with no cwd [sic] history and a strict testing policy couldn't not responsibly participate." The department disagrees that there is any intent to cancel the Triple T program and that the temporary moratorium imposed by the rules is intended precisely for the purpose of allowing the department, with stakeholder participation, to develop Triple T rules that are sufficient for providing assurance that CWD is not spread via Triple T permit activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules with respect to Triple T activities are devastating to small economies and residual ranch values and that the department should be ashamed for hiding a rule so important inside a lengthy document. The department disagrees with the comment and responds that the Triple T program exists solely to enhance wildlife management activities for landowners and land managers, that subsidiary economic implications are indirect at best, and that the department has hidden nothing with the respect to the rules, which were validly promulgated and well publicized, including the required publication in the Texas Register 30 days prior to commission action, solicitation of public comment on the department's website, and in numerous press releases. No changes were made as a result of the comment.

One commenter opposed adoption and stated that Triple T should be continued "for ranches that are not breeding and not penalize ranchers for transferring or receiving transfers of deer to improve their herds." The department disagrees that the rules as adopted are punitive or discontinue the Triple T program and responds that they impose a temporary moratorium on Triple T issuance to allow the department with the assistance of stakeholders to develop rules that are sufficient for providing assurance that CWD is not spread via Triple T permit activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that Triple T has been a major game changer for many landowners in anthrax endemic areas and that testing should be done at the trap site before deer are moved. The department agrees that the Triple T program is valuable and responds that the temporary moratorium on the issuance of Triple T permits imposed by the rules is intended to provide time for the department, with the assistance of stakeholders, to develop Triple T rules that are sufficient for providing assurance that CWD is not spread via Triple T permit activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that "the ban of the TTT Permit will adversely affect our hunting operation and our land values. It also encroaches upon our property rights." The department disagrees with the comment and responds that the department does not intend to "ban" the Triple T program, only to temporarily cease permit issuance until the department, with the assistance of stakeholder groups, is able to develop Triple T rules that are sufficient for providing assurance that CWD is not spread via Triple T permit activities. The department also responds that the rules do not affect land values and are not an encroachment upon or infringement of any private property rights, as the deer are the property of the people of the state and by statute can only be moved subject an approved wildlife stocking plan approved by the department. No changes were made as a result of the comment.

The department received seven comments specifically opposing a proposed provision that would have prohibited the trapping of deer under a Triple T permit at any site that has ever been a release site for breeder deer. The department neither agrees nor disagrees with the comment and responds that the proposal to prohibit trapping of deer under a Triple T permit at any site that has ever been a release site for breeder deer was not adopted and the current language prohibiting Triple T trapping at sites that have received breeder deer within the previous five years is being retained.

One commenter opposed adoption and stated that landowners who have ever received breeder deer should not be punished if enough time has passed and testing requirements are met. The department neither agrees nor disagree with the comment and responds that the proposal to prohibit trapping of deer under a Triple T permit at any site that has ever been a release site for breeder deer was not adopted and current language prohibiting Triple T trapping at sites that have received breeder deer within the previous five years is being retained.

One commenter opposed adoption and stated that "[W]ith the required CWD testing that we have been doing for years there are ranches that could use the wild native deer and instead will now have to be shot. These changes only seem to help the deer breeders." The department disagrees with the comment and responds that the current rules do not provide sufficient confidence that CWD isn't being spread by Triple T activities and the commission has directed staff to work with stakeholder groups to develop Triple T rules that are sufficient for providing assurance that CWD is not spread via Triple T permit activities. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there should be a time limit on when a Triple T release site is no longer ineligible to be a Triple T trap site if proper testing protocols are followed and the herd on that property is proven to be disease free. The department neither agrees nor disagrees with the comment and responds that the proposal to prohibit trapping of deer under a Triple T permit at any site that has ever been a release site for breeder deer was not adopted and the current language prohibiting Triple T trapping at sites that have received breeder deer within the previous five years is being retained.

One commenter opposed adoption and stated that the current rule addresses the concern of potential CWD spread and that prohibiting the Triple T from sites where breeder deer have ever been released denies others the opportunity to repopulate their ranches with superior Texas genetics with limited to no exposure to CWD. The department disagrees in part with the comment and responds that the current rules do not provide sufficient confidence that CWD isn't being spread by Triple T activities. The department neither agrees nor disagrees with the remainder of the comment and responds that the proposal to prohibit trapping of deer under a Triple T permit at any site that has ever been a release site for breeder deer was not adopted the current language prohibiting Triple T trapping at sites that have received breeder deer within the previous five years is being retained.

One commenter opposed adoption and stated that "[Not] allowing TTT from ranches that have had a breeding program ever is absolutely absurd." The commenter stated "They follow strict rules and are investigated. The ranches that the state should worry about are the ranches with no testing at all (non-breeding, low fence free range deer)." The department disagrees with the comment and responds that the proposed rules would have prohibited the trapping of deer for Triple T purposes at sites that have ever received breeder deer, not "ranches that have ever had a breeding program," whatever that means. The department also responds that no ranch is "investigated" unless the department has reason to believe that illegal acts have been committed there. The department further responds that its surveillance efforts for CWD with respect to free-ranging deer are meeting goals. The proposal to prohibit trapping of deer under a Triple T permit at any site that has ever been a release site for breeder deer was not adopted and the current language prohibiting Triple T trapping at sites that have received breeder deer within the previous five years is being retained.

One commenter opposed adoption and stated that the provision in question was "snuck in, not negotiated," and will hamper market value, resale demand and restrict the "bundle of rights" for landowners moving forward. The commenter stated that sellers will have to disclose this encumbrance prior to a sale or face legal action and that contrary to department claims, there will be negative economic impacts because real estate values, small town economies and deer management will change. The department disagrees with the comment and responds that although the department is very committed to stakeholder input, the rules are not required to be the result of negotiation. In any case, the provision in question was, in fact, presented to department advisory groups and deliberated in open meetings. The department disagrees that the provision, if adopted, would restrict any person's lawful rights or necessarily require disclosure in the process of any real estate transaction. The department further responds that the Parks and Wildlife Code prohibits the commercial use of Triple T permits and that any economic benefits accruing to any person as a result of the use of Triple T permits is subsidiary to the purpose of the permit. The proposal to prohibit trapping of deer under a Triple T permit at any site that has ever been a release site for breeder deer was not adopted and the current language prohibiting Triple T trapping at sites that have received breeder deer within the previous five years is being retained.

One commenter opposed adoption and stated that there is no sound reason to stop the program of moving wild deer from ranches that have never received any breeder deer as long as there is a protocol to test those deer before being moved. The department neither agrees nor disagrees with the comment and responds that the current language prohibiting Triple T trapping at sites that have received breeder deer within the previous five years is being retained and the commission has directed staff to work with stakeholder groups to develop Triple T rules that are sufficient for providing assurance that CWD is not spread via Triple T permit activities.

The department received 22 comments opposing adoption of the rules as proposed on the basis that the moratorium on Triple T permit issuance did not also include the TTP (Trap, Transport, and Process) permit program as well. The commenters stated that any transportation of deer is a threat to spread CWD because of the presence and persistence of prions in or on equipment and trailers used to handle or transport deer and that the presence of such equipment is also a threat to populations that remain after deer are trapped. The department disagrees with the comments and responds that movement of deer and trailers housing deer are tangible, known threats that could aid the spread of CWD; however, Triple T activities move live deer from one property to another while TTP moves dead deer (in which prion replication, if present, has ceased), which means there is little to no risk of transmission to other live deer, provided the carcass is properly disposed of. The department also responds that transmission of CWD via TTP activities involving infected trailers is unknown but almost certainly exceedingly small. No changes were made as a result of the comments.

The department received four comments opposing adoption of the proposed provision to eliminate the temporary use of breeder deer under the Deer Management Permit (popularly referred to as "rent-a-buck"). Of the four comments, one offered a specific reason or rationale for opposing adoption. The commenter stated that if the DMP facility is on the same property as the breeding facility, the landowner should be able to "protect his investment and move the deer into a breeder pen" after testing. The department disagrees with the comment and responds that the provision as adopted was a recommendation emerging from discussions with stakeholder groups. The department determined that most if not all usage of breeder deer in the DMP program is done as a one-way movement, primarily due to concerns that breeder bucks could be exposed to CWD at some other location and then brought back to the source breeding facility. No changes were made as a result of the comment.

The department received 148 more-or-less identical form letters opposing adoption of the rules as proposed. That form letter is reproduced here, accompanied by the department's response.

"I oppose the following sections of the proposed rule package: §65.95. Movement of Breeder Deer. (b) [(c)] Release Sites; Release of Breeder Deer. (6) "No person" should be replaced with "No Tier 1 Facility" (Tier 1 Facility, as defined in §65.90) The exponential increase in surveillance across the entire industry coupled with the 7-day post-mortem testing submission requirement, ensures a herd surveillance program sufficient to detect and prevent the spread of CWD without the need for herds, other than Tier 1 Facilities, to be required to conduct ante-mortem testing prior to release. This issue was actually corrected March 14, 2021. Many breeders will be forced out of business because of the operational costs associated with the ante-mortem testing requirement prior to release. Smaller breeder operations will be more adversely affected than larger operations. The state's economy will be adversely impacted by the harm done to the deer breeding industry which represents an annual economic impact of $1.6 billion. This will negatively affect rural economies who rely on employment opportunity and hunting opportunity created by breeders and release sites. §65.97. Testing and Movement of Deer Pursuant to a Triple T or TTP Permit. Maintain the period of five years to mirror the current trace-out timeframe - prohibiting Triple T permits for any site that has ever received breeder deer is too punitive. CWD testing is not required for deer trapped on any property if the deer are being moved to adjacent, contiguous tracts owned by the same person who owns the trap site property. (The current rule proposal mandates ante-mortem testing of breeder deer to be released onto adjacent, contiguous tracts owned by the same person who owns the breeding facility - inconsistent and unfair). Testing Requirements for TTP Permit. (1) "Not detected" test results for at least 15 test-eligible deer - why not test 100% of the test-eligible dead animals? §65.99. Breeding Facilities Epidemiologically Connected to Deer Infected with CWD. This section requires Trace Category A and B, and Tier 1 facilities to submit postmortem CWD samples for testing within one business day. We understand the need for early detection; however, one business day is not reasonable. The 7-day submission time frame for all postmortem samples is sufficient and reasonable. §65.100. Violations and Penalties. In some cases, a Trace or Tier 1 Facility may ask for a custom testing plan. This section of the rule criminalizes any negotiating process lasting longer than 7 days. Governmental agencies typically do not move that fast in any process, especially with negotiations. Criminalizing the negotiating process conflicts with the community oriented policing model outlined in the TPWD Law Enforcement General Orders."

The department disagrees with the comment and responds:

1. §65.95. Movement of Breeder Deer. (b)[(c)] Release Sites; Release of Breeder Deer. (6) "No person" should be replaced with "No Tier 1 Facility" (Tier 1 Facility, as defined in §65.90) The exponential increase in surveillance across the entire industry coupled with the 7-day post-mortem testing submission requirement, ensures a herd surveillance program sufficient to detect and prevent the spread of CWD without the need for herds, other than Tier 1 Facilities, to be required to conduct ante-mortem testing prior to release. This issue was actually corrected March 14, 2021. The department responds that evidence suggesting the disease likely has been in some of the CWD-positive facilities for multiple years indicates a significant delay/failure in detection. Because all of the facilities (like many breeder herds in Texas) had substantial portions of their inventories being released each year without any required testing, it is very likely that these large release populations hampered the department's efforts to detect CWD in these facilities in a timely fashion. The department believes that ante-mortem testing before release would have significantly improved the detection probability and helped prevent the spread of CWD. The seven-day submission rule may have prevented two trace-out herds from becoming infected, but it would not have prevented a third positive trace-out herd. In one index facility CWD was detected via ante-mortem rectal biopsy testing, underscoring its utility as a general surveillance tool. No changes were made as a result of the comment.

2. Many breeders will be forced out of business because of the operational costs associated with the ante-mortem testing requirement prior to release. Smaller breeder operations will be more adversely affected than larger operations. The state's economy will be adversely impacted by the harm done to the deer breeding industry which represents an annual economic impact of $1.6 billion. The department responds that without the availability of specific and complete financial data, it is difficult to assess a claim that the rules will force any deer breeder out of business. The department has received similar claims in response to previous department rulemaking efforts to manage CWD and notes that, based on anecdotal and publicly advertised sale prices for breeder deer and the reputed profitability of deer breeding claimed by the regulated community, it is difficult to envision any scenario in which the rules as proposed would force any deer breeder out of business, unless the deer breeder either has purchased a CWD-positive deer from another breeder or has been designated NMQ as a result of failing to comply with regulatory requirements. The department believes that most if not all deer breeders will be able to remain in business. The department also notes that the rules apply equally to all permittees. No changes were made as a result of the comment.

3. This will negatively affect rural economies who rely on employment opportunity and hunting opportunity created by breeders and release sites. The department responds that the rules as adopted will have very little effect on employment opportunities in rural economies and no effect on hunting opportunity. No changes were made as a result of the comment.

4. §65.97. Testing and Movement of Deer Pursuant to a Triple T or TTP Permit. Maintain the period of five years to mirror the current trace-out timeframe - prohibiting Triple T permits for any site that has ever received breeder deer is too punitive. CWD testing is not required for deer trapped on any property if the deer are being moved to adjacent, contiguous tracts owned by the same person who owns the trap site property. (The current rule proposal mandates ante-mortem testing of breeder deer to be released onto adjacent, contiguous tracts owned by the same person who owns the breeding facility - inconsistent and unfair). The department responds that the rules as adopted include a temporary moratorium on the issuance of Triple T permits and the commission has instructed staff to develop a regulatory response to CWD management with respect to Triple T permits. No changes were made as a result of the comment.

5. Testing Requirements for TTP Permit. (1) "Not detected" test results for at least 15 test-eligible deer - why not test 100% of the test-eligible dead animals? The department responds that the rules as adopted include a temporary moratorium on the issuance of Triple T permits and the commission has instructed staff to develop a regulatory response to CWD management with respect to Triple T permits. No changes were made as a result of the comment.

6. §65.99. Breeding Facilities Epidemiologically Connected to Deer Infected with CWD. This section requires Trace Category A and B, and Tier 1 facilities to submit postmortem CWD samples for testing within one business day. We understand the need for early detection; however, one business day is not reasonable. The 7-day submission time frame for all postmortem samples is sufficient and reasonable. The department responds that trace and tier facilities are the areas of greatest concern during an outbreak in captive facilities and that it is vital that these facilities submit post-mortem samples in an expedited manner compared to other facilities in order to account for this greater level of concern. Additionally, the importance of robust pen surveillance at high-risk facilities is necessary to prevent mortalities from being untested and to ensure that test samples are submitted in a timely fashion. No changes were made as a result of the comment.

7. §65.100. Violations and Penalties. In some cases, a Trace or Tier 1 Facility may ask for a custom testing plan. This section of the rule criminalizes any negotiating process lasting longer than 7 days. Governmental agencies typically do not move that fast in any process, especially with negotiations. Criminalizing the negotiating process conflicts with the community oriented policing model outlined in the TPWD Law Enforcement General Orders. The department responds that the process prescribed in the rules as proposed allows seven days following notification of trace facility status for a permittee to request the development of a custom plan in lieu of the requirements enumerated in the rules and clearly provides for the temporary suspension of testing requirements while the plan is being developed as well as while the permittee decides whether to agree to the terms of a plan or perform testing requirements specified in the rules. Therefore, there is no criminal liability attached to pursuing the herd plan option. No changes were made as a result of the comment.

The department received an additional 36 more or less identical form letters opposing adoption the rules as proposed. That form letter is reproduced here, accompanied by the department's response.

"These regulations are redundant and place an unreasonable financial hardship on permitted deer breeders who create massive hunting opportunities for our state. The state's economy will be adversely impacted by the harm done to the deer breeding industry, which represents an annual economic impact of $1.6 billion. Many breeders will be forced out of business because of the operational costs associated with the antemortem testing requirement prior to release. Smaller breeder operations will be more adversely affected than larger operations. Under the emergency rules, approximately 12,000 deer were subject to antemortem testing for purposes of release. The results of those tests indicated zero positives at the cost of over $3.5 million - 10 times the amount budgeted by TPWD for annual CWD surveillance of free-ranging cervids. 97% of deer breeders are compliant with regulations and have voluntarily enacted strict surveillance on our deer herds to position ourselves to survive in the industry and continue to protect CWD from our herd."

1. These regulations are redundant and place an unreasonable financial hardship on permitted deer breeders who create massive hunting opportunities for our state. The department disagrees with the comment and responds that the rules as adopted are not redundant, whatever is meant by that, and are considered by the department to be the minimally acceptable method of providing assurance that CWD will be detected early enough in any population to prevent spread. No changes were made as a result of the comment.

2. The state's economy will be adversely impacted by the harm done to the deer breeding industry, which represents an annual economic impact of $1.6 billion. Many breeders will be forced out of business because of the operational costs associated with the antemortem testing requirement prior to release. Smaller breeder operations will be more adversely affected than larger operations. The department responds that without the availability of specific and complete financial data, it is difficult to assess a claim that the rules will force any deer breeder out of business. The department has received similar claims in response to previous department rulemaking efforts to manage CWD, amd notes that, based on anecdotal and publicly advertised sale prices for breeder deer and the reputed profitability of deer breeding claimed by the regulated community, it is difficult to envision any scenario in which the rules as proposed would force any deer breeder out of business, unless the deer breeder either has purchased a CWD-positive deer from another breeder or has been designated NMQ as a result of failing to comply with regulatory requirements. The department believes that most if not all deer breeders will be able to remain in business. The department also notes that the rules apply equally to all permittees. No changes were made as a result of the comment.

4. Under the emergency rules, approximately 12,000 deer were subject to antemortem testing for purposes of release. The results of those tests indicated zero positives at the cost of over $3.5 million - 10 times the amount budgeted by TPWD for annual CWD surveillance of free-ranging cervids. 97% of deer breeders are compliant with regulations and have voluntarily enacted strict surveillance on our deer herds to position ourselves to survive in the industry and continue to protect CWD from our herds. The department agrees with the comment and responds that CWD was detected in one additional deer breeding facility under the emergency rules. The department also notes that less than 60% of breeding facilities are represented in the the ante-mortem testing that occurred under the emergency rule, which means that the remaining deer breeding facilities were being inadequately surveilled. No changes were made as a result of the comments.

The Texas Deer Association, the Deer Breeders Corporation, and State Representative Bryan Slaton submitted comments opposing adoption of the rules as proposed.

The department received 1,204 comments supporting adoption of the rules as proposed.

Comments supporting adoption of the rules as proposed were received from the Texas Wildlife Association, the Texas Foundation for Conservation, the Texas and Southwestern Cattle Raisers Association, the National Deer Association, the Safari Club International - Austin Chapter, the Backcountry Hunters and Anglers - Texas Chapter, the Texas Conservation Alliance, The Nature Conservancy - Texas Chapter, the Texas Chapter of the Wildlife Society, the Texas Association of Bass Clubs, Texas Black Bass Unlimited, Texas Trappers Association, the Mule Deer Foundation - Lone Star Chapter, the Hill Country Conservancy, Environment Texas, the National Wildlife Federation, and the Devils River Conservancy.

DIVISION 1. CHRONIC WASTING DISEASE (CWD)

31 TAC §§65.80 - 65.83, 65.88

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

§65.83.Special Provisions.

A breeding facility that is located in a CZ or SZ and subject to the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD) may release breeder deer to adjoining acreage under the same ownership, provided:

(1) the title in the county deed records reflects that the surface of the release site and of the breeding facility is held by the same owner or owners;

(2) the release is specifically authorized in a herd plan; and

(3) the breeding facility that releases breeder deer under the provisions of this section and any sites to which the breeder deer are to be released are in compliance with all applicable provisions of this subchapter, including provisions relating to the testing of released breeder deer, except as specifically exempted under a herd plan.

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 November 29, 2021.

TRD-202104744

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: December 19, 2021

Proposal publication date: October 1, 2021

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

DIVISION 2. CHRONIC WASTING DISEASE - COMPREHENSIVE RULES 31 TAC §§65.90 - 65.100

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

§65.90.Definitions.

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

(1) Accredited testing laboratory--A laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD.

(2) Ante-mortem test--A CWD test performed on a live deer.

(3) Breeder deer--A white-tailed deer or mule deer possessed under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.

(4) Confirmed--A CWD test result of "positive" received from the Texas A&M Veterinary Medical Diagnostic Laboratory or the National Veterinary Service Laboratories of the United States Department of Agriculture.

(5) CWD--Chronic wasting disease.

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

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

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

(9) Department (department)--Texas Parks and Wildlife Department.

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

(11) Exposed deer--A deer that meets any of the following criteria:

(A) the deer is or has been in a breeding facility where a CWD-positive deer has been kept following the date the facility was first exposed to CWD (if known);

(B) the deer is or has been in a breeding facility within the five-year period preceding the death date of any CWD-positive deer that was in the facility (or the date of a positive ante-mortem test result); or

(C) the deer is or has been in a breeding facility on or after the date that the facility received a deer under the circumstances described in subparagraph (A) or (B) of this paragraph.

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

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

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

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

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

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

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

(19) Landowner (owner)--Any person who has an ownership interest in a tract of land and includes landowner's authorized agent.

(20) Landowner's authorized agent (agent)--A person designated by a landowner to act on the landowner's behalf.

(21) Last known exposure--The last date a deer in a trace-out or trace-in breeding facility was exposed to a trace deer prior to the death or transfer of that trace deer, or the last date an exposed deer entered a Tier 1 facility.

(22) Liberated deer--A free-ranging deer that bears evidence of having been liberated including, but not limited to a tattoo (including partial or illegible tattooing) or of having been eartagged at any time (holes, rips, notches, etc. in the ear tissue).

(23) Movement Qualified (MQ)--A designation made by the department pursuant to this division that allows a deer breeder to lawfully transfer breeder deer.

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

(25) Post-mortem test--A CWD test performed on a dead deer.

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

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

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

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

(30) Reporting year--For a deer breeder's permit, the period of time from April 1 of one calendar year through March 31 of the next calendar year.

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

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

(33) Suspect--An initial CWD test result of "detected" that has not been confirmed.

(34) TAHC--Texas Animal Health Commission.

(35) Test-eligible--

(A) Until the effective date of these rule amendments, a deer at least 16 months of age; and

(B) Beginning with the effective date of this rule, a deer at least 12 months of age.

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

(37) Tier 1 facility--A breeding facility that has received an exposed deer that was in a trace-out breeding facility.

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

(39) Trace-in breeding facility - A breeding facility that meets either of the following criteria:

(A) the facility has transferred a deer directly to a CWD-positive facility within the five-year period preceding the reported mortality date of a CWD-positive deer in the facility (or the date of the positive ante-mortem test result); or

(B) the facility has possessed a deer that was transferred indirectly (i.e., by way of an intermediary breeding facility or facilities) to a CWD-positive facility within the five-year period preceding the reported mortality date of a CWD-positive deer in the facility, or the date of the positive ante-mortem test result.

(40) Trace-out breeding facility--A breeding facility that has received an exposed deer that was in a CWD-positive deer breeding facility.

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

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

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

(44) TWIMS--The department's Texas Wildlife Information Management Services (TWIMS) online application.

§65.91.General Provisions.

(a) To the extent that any provision of this division conflicts with any provision of this chapter other than Division 1 of this subchapter, this division prevails.

(b) Except as provided in this division, no live breeder deer or deer trapped under a Triple T permit, TTP permit or DMP may be transferred anywhere for any purpose.

(c) Except as provided in this division or as expressly authorized and in accordance with the provisions of a herd plan, no person shall transfer deer to or from any facility for which a CWD test result of "suspect" or "positive" has been obtained from an accredited testing laboratory, irrespective of how the sample was obtained or who collected the sample. The provisions of this subsection take effect immediately upon the notification of a CWD "suspect" test result, and continue in effect until the department expressly authorizes the resumption of permitted activities at that facility.

(d) Notwithstanding any provision of this division, no person may cause or allow breeder deer to be moved from a facility for any purpose if such movement is prohibited by a herd plan associated with a TAHC hold order or TAHC quarantine.

(e) Except as provided in §65.99(i) of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD), no person may transfer deer to or from a facility that has been designated NMQ by the department unless specifically authorized by the department for the holder of a scientific research permit when the proposed research is determined to be of use in advancing the etiology of CWD in susceptible species.

(f) Immediately upon the notification that a facility has received a CWD "suspect" test result (a CWD suspect facility), all facilities that have been in possession of a deer that was held in the CWD suspect facility within the previous five years shall be designated NMQ by the department until it is determined that the facility is not epidemiologically linked to the CWD suspect deer, or it is determined upon further testing that the "suspect" deer is not a confirmed positive.

(g) Unless expressly provided otherwise in this division, all applications, reports, and notifications required by this division shall be submitted electronically via TWIMS or by another method expressly authorized by the department.

(h) In the event that technical or other circumstances prevent the development or implementation of automated methods for collecting and submitting the data required by this division via TWIMS, the department may prescribe alternative methods for collecting and submitting the data required by this division.

(i) Except as provided in this division, no person shall introduce into, remove deer from or allow or authorize deer to be introduced into or removed from any facility unless a georeferenced map (a map image incorporating a system of geographic ground coordinates, such as latitude/longitude or Universal Transverse Mercator (UTM) coordinates) showing the exact boundaries of the facility has been submitted to the department prior to any such introduction or removal.

§65.92.CWD Testing.

(a) All CWD test samples at the time of submission for testing shall be accompanied by a properly executed, department-prescribed form provided for that purpose.

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

(1) is at least 12 months of age; and

(2) has not been the source of a "not detected" ante-mortem test result submitted within the previous 12 months.

(c) A post-mortem CWD test is not valid unless it is performed by an accredited testing laboratory on the obex and medial retropharyngeal lymph node of a test-eligible mortality, and may be collected only by a qualified licensed veterinarian, TAHC-certified CWD sample collector, or other person approved by the department.

(d) Except for the provisions of paragraphs (3) and (4) of this subsection, the provisions of this subsection take effect April 1, 2022. To meet the requirements of §65.94 of this title (relating to Breeding Facility Minimum Movement Qualifications), or §65.95 of this title, ante-mortem test results may be substituted for post-mortem test results at a ratio of five "not detected" ante-mortem test results for each required "not detected" post-mortem test result, provided:

(1) the ante-mortem test samples are collected within eight months of the end of the reporting year.

(2) The number of ante-mortem test results submitted for the purposes of satisfying the requirements of §65.94(a)(1)(C) of this title cannot exceed 30 percent of the total number of post-mortem results required by this division, multiplied by five, in more than two reporting years during the life of the permit. This paragraph does not apply to the use of ante-mortem test results to meet the provision of §65.94(a)(1)(C) of this title requiring that a minimum of five percent of the breeding facility inventory be tested annually.

(3) For a facility with sufficient deer to satisfy the ante-mortem substitution requirements of this subsection were it not for the testing frequency limitations imposed by subsection (b)(2) of this section, test results from deer at least six months of age at the time of testing may be submitted to satisfy the requirements of this subsection. The provisions of this paragraph do not apply unless all test-eligible deer in the facility have been tested prior to the testing of any deer that is six months of age or older but younger than 12 months of age.

(4) For a facility that must conduct ante-mortem testing of all test-eligible deer in the facility to regain MQ status, the department will not accept inconclusive ante-mortem test results (including, but not limited to "insufficient follicles") for more than 10 percent of the total number of deer tested. For facilities required to test less than ten deer, inconclusive ante-mortem test results (including but not limited to "insufficient follicles") will not be accepted.

(5) No provision of this subsection shall be construed as to relieve any permittee of the obligation to test every mortality that occurs within a breeding facility as required by §65.94 of this title.

(e) For purposes of satisfying the testing requirements of §65.94 or §65.95 of this title for the period of time between the reporting year that began April 1, 2017 and the reporting period ending March 31, 2022, ante-mortem test results may be substituted for post-mortem test results at a ratio of three "not detected" ante-mortem test results for each required "not detected" post-mortem test result.

(f) Except as specifically provided in this division, an ante-mortem test result may not be used more than once to satisfy any testing requirement of this division.

(g) No ante-mortem test result may be utilized by more than one permittee to satisfy any requirement of this division.

(h) An ante-mortem test result is valid only if the deer from which it was taken is still in the inventory of the facility in which the sample was taken.

(i) The testing requirements of this division cannot be altered by the sale or subdivision of a property to a related party if the purpose of the sale or subdivision is to avoid the requirements of this division.

(j) Deer breeders shall report all deer mortalities that occur within a breeding facility within seven days of detection.

(k) All CWD test samples shall be submitted to an accredited testing laboratory within seven days of collection.

§65.93.Harvest Log.

(a) When a release site is required by this division to maintain a harvest log, the harvest log shall be maintained daily and shall meet the requirements of this section.

(b) For each deer harvested on the release site the landowner must, on the same day that the deer is harvested, legibly enter the following information in the daily harvest log:

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

(2) the date the deer was harvested;

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

(4) any alphanumeric identifier tattooed on the deer;

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

(6) any other identifier and identifying number on the deer, including a description of any evidence or indication that the deer was a liberated deer including, but not limited to evidence of having been eartagged at any time (holes, rips, notches, etc. in ear tissue).

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

(d) By not later than April 1 of each year, the owner of a release site shall submit the contents of the daily harvest log to the department via TWIMS or via another method specified by the department.

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

§65.94.Breeding Facility Minimum Movement Qualification.

(a) Notwithstanding any other provision of this division, a breeding facility is designated NMQ and is prohibited from transferring breeder deer anywhere for any purpose if the breeding facility:

(1) has not:

(A) met the provisions of this subparagraph:

(i) had less than five eligible mortalities from May 23, 2006 through March 31, 2016; or

(ii) submitted CWD "not detected" test results for at least 20% of the total number of eligible mortalities that occurred in the facility since May 23, 2006; and

(B) beginning with the reporting year that starts April 1, 2017, and ending March 31, 2022, submitted CWD "not detected" test results for:

(i) at least 80% of test-eligible mortalities occurring in the facility during each reporting year before the effective date of this section; and

(ii) 100 percent of test-eligible mortalities occurring in the facility after the effective date of this subsection; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the test-eligible deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by 3.6 percent; and

(C) beginning with the reporting year that starts April 1, 2022 and for each reporting year thereafter, submitted CWD "not detected" test results for 100 percent of eligible mortalities occurring in the facility during the previous reporting year; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the test-eligible deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by five percent;

(2) is not authorized pursuant to a herd plan associated with a TAHC hold order or TAHC quarantine;

(3) does not have a reconciled herd inventory; or

(4) is not in compliance with the reporting and recordkeeping provisions of this division and §65.608 of this title (relating to Annual Reports and Records).

(b) A breeding facility that has been designated as NMQ for failure to comply with the testing requirements specified in subsection (a) of this section will be restored to MQ:

(1) when the required "not detected" test results prescribed by subsection (a) of this section are submitted; or

(2) the department has designated the breeding facility MQ under the provisions of subsections (d), (e), or (f) of this section.

(c) A breeding facility designated NMQ shall report all mortalities within the facility to the department immediately upon discovery of the mortality.

(d) Notwithstanding the applicable provisions of §65.92 of this title (relating to CWD Testing), a breeding facility that is designated NMQ and is unable to satisfy the requirements of subsection (a) of this section to achieve MQ status may be designated MQ by the department, provided:

(1) the facility has not received any exposed deer;

(2) there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory reported in TWIMS;

(3) the department has determined that the number of test-eligible deer in the facility is not sufficient to provide the necessary ante-mortem test samples to substitute for post-mortem test results;

(4) a department herd inventory inspection has been completed at least 12 months prior to the initiation of any ante-mortem testing under paragraph (5) of this subsection;

(5) all test-eligible deer in the facility are subjected to ante-mortem testing two times at an interval of not less than 12 months, beginning not less than 12 months from being designated NMQ, provided a deer that is not test-eligible when testing under this subsection begins but reaches test-eligible status during the 12-month interval stipulated by this paragraph is not required to be tested twice, but must be tested at least once during the 12-month interval stipulated by this paragraph. The test result must be "not detected"; and

(6) a test result of "not detected" for all tests required under paragraph (5) of this subsection is obtained and submitted for each test-eligible deer in the facility.

(e) The department may decline to designate a facility as MQ under subsection (d) of this section:

(1) if the department determines that a permittee has intentionally failed to test a test-eligible mortality; or

(2) upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation must:

(A) be in writing and articulate the specific rationale supporting the recommendation; and

(B) may include specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation.

(f) Upon the successful completion of any additional testing requirements stipulated in the recommendation required by subsection (e) of this section, the department may designate a facility MQ.

(g) The department may deny permit renewal for any facility for which substitute ante-mortem test results are utilized for more than 30 percent of the required post-mortem test results, multiplied by five, pursuant to §65.92(d) of this title in more than two reporting years during the life of the permit. This paragraph does not apply to the use of ante-mortem test results to meet the provisions of subsection (a)(1)(C) of this section requiring that a minimum of five percent of the breeding facility inventory be tested annually.

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

(i) Deer that according to department records should be present in a breeding facility but cannot be accounted for to the satisfaction of the department are considered to be mortalities for the purposes of this section.

§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;

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

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

(4) a registered nursing facility, provided:

(A) the deer are less than 120 days of age;

(B) the facility from which the deer are transferred is MQ at the time of transfer; and

(C) no deer from any other breeding facility are or have been present in the nursing facility during the reporting year in which the transfer occurs.

(D) A registered nursing facility is prohibited from accepting deer from more than one breeding facility in one reporting year.

(E) No person may possess deer older than 120 days of age in a nursing facility.

(b) 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.

(E) The provisions of this paragraph cease effect three years from the effective date of this section.

(c) 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 submit post-mortem CWD test results for one of the following values, whichever represents the greatest number of deer tested:

(A) 100 percent of all hunter-harvested deer; or

(B) one hunter-harvested deer per liberated deer released on the release site between the last day of lawful hunting on the release site in the previous hunting year and the last day of lawful hunting on the release site during the current hunting year; provided, however, this minimum harvest and testing provision may only be substituted 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.

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

(a) General.

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

(2) The department will not issue a Triple T permit authorizing deer to be trapped at a:

(A) release site that has received breeder deer within five years of the application for a Triple T permit;

(B) release site that has failed to fulfill the applicable testing requirements of this division;

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

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

(E) any site under a hold order or quarantine.

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

(4) All deer released under the provisions of this section must be tagged prior to release in one ear with a button-type RFID tag approved by the department, in addition to the marking required by §65.102 of this title (relating to Disease Detection Requirements). RFID tag information must be submitted to the department.

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

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

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

(b) Testing Requirements for Triple T Permit.

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

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

(c) Testing Requirements for TTP Permit.

(1) "Not detected" test results for at least 15 test-eligible deer from the trap site must be submitted.

(2) The landowner of a trace-out release site must submit CWD test results for 100% of the deer harvested pursuant to a TTP permit, which may include the samples required under paragraph (1) of this subsection.

(3) Test results related to a TTP permit must be submitted to the department by the method prescribed by the department by the May 1 immediately following the completion of permit activities.

§65.98.Transition Provisions.

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.

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

(a) Effectiveness.

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

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

(b) No deer from a facility subject to the provisions of this section may be transferred or liberated except as provided in this section or expressly authorized in a herd plan and then only in accordance with the provisions of this division and the herd plan.

(c) Deer transferred under the provisions of this section must be tagged in one ear with a button-type RFID tag approved by the department.

(d) Category A trace-out breeding facility.

(1) A Category A facility is a trace-out breeding facility:

(A) in which all trace deer are alive in the facility; or

(B) for which post-mortem test results of "not detected" have been returned for trace deer that have died and all other trace deer are alive and present in the facility.

(2) Immediately upon notification by the department of Category A status, a facility is automatically NMQ. Except as provided in paragraph (3) of this subsection, a permittee shall, upon notification by the department of Category A status:

(A) within seven days euthanize all trace deer in the breeding facility and submit test samples for each of those deer for post-mortem testing within one business day;

(B) inspect the facility daily for mortalities;

(C) immediately report all test-eligible mortalities that occur within the facility; and

(D) immediately collect test samples from all test-eligible mortalities that occur within the facility and submit the samples for post-mortem testing within one business day of collection.

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

(4) The department in consultation with TAHC may decline to authorize a custom testing plan under subsection (h) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.

(5) The department will not restore MQ status unless CWD "not detected" test results are obtained for all required sample submissions and the permittee has complied with all applicable requirements of this subsection and this division.

(e) Category B trace-out breeding facility.

(1) A Category B facility is a trace-out breeding facility in which less than 100% of the trace deer that department records indicate were received by the facility are for whatever reason (including but not limited to transfer, release, or escape) available for testing.

(2) Immediately upon notification by the department of Category B status; a facility is automatically NMQ and the permittee shall:

(A) within seven days euthanize all trace deer in the breeding facility and submit test samples for each of those deer for post-mortem testing within one business day;

(B) inspect the facility daily for mortalities;

(C) immediately report all test-eligible mortalities that occur within the facility;

(D) immediately collect test samples from all test-eligible mortalities that occur within the facility and submit the samples for post-mortem testing within one business day of collection; and

(E) conduct ante-mortem testing of all test-eligible deer in the facility as specified in the following:

(i) for a facility for which the date of last known exposure is within the immediately preceding 18 months:

(I) submit rectal or tonsil biopsy samples; and

(II) submit tonsil biopsy samples collected no earlier than 24 months from the date of last known exposure;

(ii) for a facility for which the date of last known exposure is not within the immediately preceding 18 months and not at a time prior to the immediately preceding 36 months: collect and submit tonsil biopsy samples no earlier than 24 months from the date of last known exposure; and

(iii) for a facility for which the date of last known exposure occurred at a time after the immediately preceding 36 months: collect and submit rectal or tonsil biopsy samples collected no earlier than 36 months from the date of last known exposure.

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

(4) Samples required by paragraph (2)(E) of this subsection shall be submitted no later than 45 days after the applicable last known exposure period, or other date as determined by the department.

(5) The department in consultation with TAHC may decline to authorize a custom testing plan under subsection (h) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.

(6) The department will not restore MQ status unless CWD "not detected" test results are obtained for all required sample submissions and the permittee has complied with all applicable requirements of this subsection and this division.

(f) Tier 1 facility.

(1) Upon notification by the department of Tier 1 status, a facility is automatically NMQ and the permittee shall:

(A) inspect the facility daily for mortalities;

(B) immediately report all test-eligible deer mortalities that occur within the facility; and

(C) immediately collect test samples from all test-eligible deer mortalities that occur within the facility and submit for post-mortem testing within one business day of collection.

(2) A permittee may request the development of a custom testing plan as provided in subsection (h) of this section; provided, however, the permittee must comply with the provisions of paragraph (1)(A) - (C) of this subsection.

(3) The department will not restore MQ status unless the permittee has complied with all applicable requirements of this subsection and this division, and any one of the following:

(A) post-mortem results of "not detected" have been submitted for every exposed deer received from a trace facility; or

(B) the department has restored MQ status to all trace facilities from which deer were received; or

(C) the permittee has conducted ante-mortem testing as specified in subsection (e)(2)(E) of this section; or

(D) the permittee has conducted testing as specified in compliance with the provisions of a custom testing plan under the provisions of subsection (h) of this section to the satisfaction of the department and TAHC.

(4) The department in consultation with TAHC may decline to authorize a custom testing plan under subsection (h) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.

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

(1) A permittee shall, upon notification by the department of trace-in facility status:

(A) inspect the facility daily for mortalities;

(B) immediately report all test-eligible mortalities that occur within the facility; and

(C) immediately collect test samples from all test-eligible mortalities that occur within the facility and submit the samples for post-mortem testing within one business day of collection.

(2) The department may restore MQ status to a trace-in facility if all trace deer have been post-mortem tested with results of "not detected."

(3) For a trace-in facility for which the provisions of paragraph (2) of this subsection cannot be satisfied, the department may restore MQ status upon:

(A) submission of tonsil biopsy ante-mortem test results of "not detected" for all test-eligible deer within the facility, provided the date of the last transfer to a positive facility occurred within the 36 months preceding notification of trace-in facility status by the department; or

(B) submission of tonsil or rectal biopsy test results of "not detected" for all test-eligible deer within the facility, provided the date of the last transfer to a positive facility occurred at a time greater than 36 months from notification of trace-in facility status.

(C) The test samples required to satisfy the requirements of this paragraph must be submitted within 45 days of notification by the department of trace-in facility status.

(4) In lieu of the testing requirements prescribed in this subsection, a permittee may request the development of a custom testing plan as provided in subsection (h) of this section; provided however, the permittee must comply with the requirements of paragraph (1) of this subsection.

(5) The department in consultation with TAHC may decline to authorize a custom testing plan under subsection (h) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.

(6) The department will not restore MQ status unless CWD "not detected" test results are obtained for all required sample submissions and the permittee has complied with all applicable requirements of this subsection and this division.

(h) Custom Testing Plan. Within seven days of being notified by the department that a breeding facility has been designated a Category A, Category B, trace-in facility, or Tier 1 facility, a permittee may, in lieu of meeting the applicable testing requirements of subsections (d) - (g) of this section, request the development of a custom testing plan by the department in consultation with TAHC based upon an epidemiological assessment conducted by the department and TAHC. A custom testing plan under this subsection is not valid unless it has been approved by the department and TAHC.

(1) The department shall temporarily suspend the applicable testing provisions of subsections (d)(2)(A), (e)(2)(A) and (E), and (g) of this section while the epidemiological assessment and custom testing plan development under this subsection take place.

(2) Upon the development of a custom testing plan under the provisions of this subsection, the department shall provide the permittee with a copy of the custom testing plan and the permittee shall, within seven days:

(A) agree in writing to comply with the provisions of the custom testing plan; or

(B) notify the department in writing that the permittee declines to participate in the custom testing plan.

(C) If a permittee chooses to decline participation in a custom testing plan under this subsection, the provisions of subsections (d)(2)(A), (e)(2)(A) and (E), and (g) of this section take effect as of the date of the notification required by subparagraph (B) of this paragraph and all time-dependent calculations of those subsections begin.

(D) If a permittee agrees in writing to comply with the provisions of a custom testing plan under this subsection, the custom testing plan replaces the testing provisions of subsections (d)(2)(A), (e)(2)(A) and (E), and (g) of this section.

(3) A breeding facility designated by the department as Category A, Category B, trace-in, or Tier 1 is NMQ as of the date of such notification and remains NMQ until the provisions of the custom testing plan under this subsection have been satisfied.

(4) If for any reason the permittee does not comply with the provisions of a custom testing plan under this subsection, the provisions of subsections (d) - (g) of this section resume applicability.

(5) The terms of a custom testing plan under this subsection are non-negotiable and final.

(i) Nursing facilities.

(1) Notwithstanding NMQ status, deer less than 120 days of age in any Category A, Category B, trace-in, and or Tier 1 facility may be transferred to a registered nursing facility, provided:

(A) the facility from which the deer are transferred was MQ at the time the facility was designated Category A, Category B, trace-in, or Tier 1; and

(B) no deer from any other breeding facility are or have been present in the nursing facility during the current reporting year.

(2) A registered nursing facility is prohibited from accepting deer from more than one breeding facility in one reporting year.

(3) No person may possess deer older than 120 days of age in a nursing facility.

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 November 29, 2021.

TRD-202104745

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: December 19, 2021

Proposal publication date: October 1, 2021

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

DIVISION 2. CHRONIC WASTING DISEASE - MOVEMENT OF DEER 31 TAC §65.99

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

The 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 November 29, 2021.

TRD-202104746

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: December 19, 2021

Proposal publication date: October 1, 2021

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

TEXAS PARKS AND WILDLIFE DEPARTMENT

WILDLIFE

CHRONIC WASTING DISEASE (CWD)
31 TAC §§65.80 - 65.83, 65.88
CHRONIC WASTING DISEASE - COMPREHENSIVE RULES
31 TAC §§65.90 - 65.100
CHRONIC WASTING DISEASE - MOVEMENT OF DEER
31 TAC §65.99

https://www.sos.state.tx.us/texreg/archive/December172021/index.html

TEXAS TPWD CWD TSE PRION UPDATE 270 CONFIRMED TO DATE POSTIVE CAPTIVE AND WILD

Subject: SUMMARY MINUTES OF THE 410th COMMISSION MEETING Texas Animal Health Commission September 21, 2021 CWD TSE PrP

SUMMARY MINUTES OF THE 410th COMMISSION MEETING Texas Animal Health Commission September 21, 2021 CWD TSE PrP

SUMMARY MINUTES OF THE 410th COMMISSION MEETING Texas Animal Health Commission September 21, 2021

snip...

• Chronic Wasting Disease (CWD): A CWD Special Work Session was held at this office yesterday, September 20, 2021. Epidemiological investigations on seven (7) confirmed CWD affected WTD breeder facilities are being conducted. Two facilities have been depopulated, two are partially depopulated, and three are pending herd plan finalization. Of a total of 318 Trace Facilities 

Summary Minutes of the 410th Commission Meeting – 9/21/2021

3

(facilities that either contributed deer to positive facilities or received deer that had been in positive facilities in the past 60 months), evaluations of 202 (64%) have been completed, and evaluations of 116 (36%) are pending. The Joint TAHC/TPWD CWD Taskforce met five times this year to provide updates and take input from members. 

snip...

b) The Texas Animal Health Commission (commission) ADOPTS amendments to Title 4, Texas Administrative Code, Chapter 40 titled “Chronic Wasting Disease.” Specifically, amendments are proposed to §40.1, concerning Definitions, §40.2, concerning General Requirements, §40.3, 

Summary Minutes of the 410th Commission Meeting – 9/21/2021 13

concerning Herd Status Plans for Cervidae, §40.4, concerning Entry Requirements, §40.5, concerning Surveillance and Movement Requirements for Exotic CWD Susceptible Species, §40.6, concerning CWD Movement Restriction Zones and §40.7, concerning Executive Director Declaration of a CWD Movement Restriction Zone. The Texas Animal Health Commission proposes the addition of §40.8, concerning Enforcement and Penalties.

The purpose of this chapter is to prevent and control the incidence of chronic wasting disease (CWD) in Texas by seeking to reduce the risk of interstate and intrastate transmission of CWD in susceptible cervid species. The Texas Animal Health Commission (commission) proposes amendments to each section of Chapter 40 to clarify, correct, and update information regarding CWD management. Nonsubstantive grammatical and editorial changes are also proposed throughout the chapter for improved readability.

The motion to adopt the amendments to Chapter 40, Chronic Wasting Disease, passed.

c) The Texas Animal Health Commission (commission) ADOPTS amendments to Title 4, Texas Administrative Code, concerning the title of Chapter 45, “Reportable Diseases”, §45.1, concerning Definitions, §45.2, concerning Duty to Report, and the additions of §45.3, concerning Reportable and Actionable Disease List and §45.4, concerning Enforcement and Penalties.

snip...

https://www.tahc.texas.gov/agency/meetings/410thSummaryCommissionMeetingMinutes.pdf

2021-11-18 Free Range Medina N/A White-tailed Deer M 3.5

2021-11-04 Free Range El Paso N/A Mule Deer F 4.5

2021-10-18 Breeder Deer Medina Facility #4 White-tailed Deer M 4

2021-10-12 Breeder Deer Hunt Facility #9 White-tailed Deer F 8.189041096

2021-10-12 Breeder Deer Uvalde Facility #8 White-tailed Deer M 1.208219178

2021-10-12 Breeder Deer Uvalde Facility #8 White-tailed Deer M 1.21369863

2021-10-12 Breeder Deer Uvalde Facility #8 White-tailed Deer M 1.205479452

2021-10-12 Breeder Deer Uvalde Facility #8 White-tailed Deer M 2.208219178

2021-10-12 Breeder Deer Uvalde Facility #8 White-tailed Deer M 2.117808219

2021-10-08 Breeder Deer Duval Facility #13 White-tailed Deer F 3.238356164

2021-10-08 Breeder Deer Medina Facility #4 White-tailed Deer F 2.260273973

2021-09-14 Breeder Deer Medina Facility #4 White-tailed Deer F 6.205479452

SNIP...SEE ALL;

https://tpwd.texas.gov/huntwild/wild/diseases/cwd/tracking/

CWD was first discovered in Texas in 2012 in free-ranging mule deer along a remote area of the Hueco Mountains near the Texas-New Mexico border. Since then, it has been detected in 261 captive or free ranging cervids in 14 counties, including white-tailed deer, mule deer, red deer and elk. To date, 168 of those of those positives are from captive breeding facilities or associated release sites and 68 are from free-ranging populations.

Landowners and hunters play a critical role in managing CWD. The most effective way for them to help slow the spread of CWD is to report sick deer to a TPWD biologist, properly dispose of inedible carcass parts, and to voluntarily test their harvests by taking them to a local check station or contacting a TPWD biologist in their area.

By adhering to CWD regulations and recommendations, hunters, landowners, and communities are helping to ensure that native deer populations remain healthy and plentiful for years to come, allowing for the conservation of the species and preservation of Texas’ hunting heritage and traditions.

https://tpwd.texas.gov/newsmedia/releases/?req=20211020a

“Regarding the current situation involving CWD in permitted deer breeding facilities, TPWD records indicate that within the last five years, the seven CWD-positive facilities transferred a total of 2,530 deer to 270 locations in 102 counties and eight locations in Mexico (the destinations included 139 deer breeding facilities, 118 release sites, five Deer Management Permit sites, and three nursing facilities).'' ...

It is apparent that prior to the recent emergency rules, the CWD detection rules were ineffective at detecting CWD earlier in the deer breeding facilities where it was eventually discovered and had been present for some time; this creates additional concern regarding adequate mitigation of the risk of transferring CWD-positive breeder deer to release sites where released breeder deer come into contact with free-ranging deer...

Commission Agenda Item No. 5 Exhibit B

DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction. 

snip...

 A third issue is the accuracy of mortality reporting. Department records indicate that for each of the last five years an average of 26 deer breeders have reported a shared total of 159 escapes. Department records for the same time period indicate an average of 31 breeding facilities reported a shared total of 825 missing deer (deer that department records indicate should be present in the facility, but cannot be located or verified). 

https://tpwd.texas.gov/business/feedback/meetings/2022/1104/agenda/item.phtml?item=5

Listen here;

Nov 3, 2021

https://tpwd.texas.gov/publications/multimedia/media/commission_20211103/20211103_com_00_work_session.mp3

Nov 4, 2021

https://tpwd.texas.gov/publications/multimedia/media/commission_20211104/20211104_com_00_commission.mp3

Counties where CWD Exposed Deer were Released, September 2021

https://tpwd.texas.gov/documents/257/CWD-Trace-OutReleaseSites.pdf

Number of CWD Exposed Deer Released by County, September 2021

https://tpwd.texas.gov/documents/258/CWD-Trace-OutReleaseSites-NbrDeer.pdf

Oh, Deer, CWD, Heading Off a Wildlife Epidemic Texas Real Estate Research Center TAMU

Texas A & M University

Texas Real Estate Research Center 

Oh, Deer

Heading Off a Wildlife Epidemic

Charles E. Gilliland (Aug 18, 2021)

The Takeaway

Landowners in certain parts of the state need to be aware of chronic wasting disease, which can greatly reduce the number of deer. While there are no known cures or ways to eradicate the disease, the Texas Parks and Wildlife Department is taking measures to reduce its spread.

A multitude of risks threaten to undermine Texas landowners' efforts to manage their land. Some of those spring from past activities but can leave invisible living legacies behind. Anthrax, for example. An outbreak of anthrax in livestock leaves a scattering of spores across the countryside that can activate and infect replacement herds.

Chronic wasting disease (CWD) in wildlife poses a similar potential problem for landowners in certain parts of Texas. CWD infects members of the Cervidae family, namely deer, elk, moose, etc. CWD does not pose dangers to livestock, and scientists have not found evidence of the disease infecting humans. However, it is always fatal to stricken wildlife, threatening a destructive wave of infections among deer herds where the disease has spread. Therefore, CWD poses a direct threat to one of the primary motives for owning rural land: wildlife herd management.

Profiling CWD

CWD belongs to a family of disorders known as prion diseases, or transmissible spongiform encephalopathies (TSEs). It includes Creutzfeldt-Jakob disease in humans and bovine spongiform encephalopathy, or mad cow disease, in cattle. The Centers for Disease Control and Prevention describes these maladies in detail:

The causative agents of TSEs are believed to be prions. The term “prions" refers to abnormal, pathogenic agents that are transmissible and are able to induce abnormal folding of specific normal cellular proteins called prion proteins that are found most abundantly in the brain. The functions of these normal prion proteins are still not completely understood. The abnormal folding of the prion proteins leads to brain damage and the characteristic signs and symptoms of the disease. Prion diseases are usually rapidly progressive and always fatal.

CWD symptoms include dramatic weight loss, stumbling, listlessness, decreased social interaction, loss of fear of humans, and excessive salivating. However, animals typically exhibit no symptoms until 18-24 months after contracting the disease. In addition, these symptoms could be caused by other conditions, so formal testing is needed to reliably diagnose CWD.

Obviously, an infected animal may spread the disease to other members of the herd during the nonsymptomatic phase of infection. Perhaps even worse, the body casts off prions, so an infected animal will cast off diseased prions. Therefore, an infected herd can leave infection in the soil and remain infectious to host animals, much like anthrax. 

CWD Comes to Texas

Scientists first identified CWD in mule deer in Colorado in 1967. Since that time, CWD has spread to Wyoming, Montana, Wisconsin, Pennsylvania, and other states.

CWD first appeared in Hudspeth County in 2012 in free-ranging mule deer. In 2015, the Texas Parks and Wildlife Department (TPWD) found CWD in white-tailed deer in captive facilities in Medina County. By 2021, a total of 224 cases had been identified in 13 counties. Tests confirmed cases in two red deer, four elk, 49 mule deer, and 169 white-tailed deer.

See the TPWD site for details. Texas A&M AgriLife Extension provides a good overview of the disease in A Guide to Chronic Wasting Disease (CWD) in Texas Cervids.

Containing the Spread

Currently, there is no known cure for the disease nor any mechanism to eradicate it. Therefore, TPWD management of CWD seeks to contain the spread to areas of confirmed infections.

The plan has established five CWD zones with confirmed infections: Kimble County Zone, Trans-Pecos Zone, South Central Zone, Panhandle Zone, and Val Verde County Zone. The latest edition of the TPWD Outdoor Annual provides maps of each zone indicating official stations performing testing for CWD. All hunters harvesting animals in these zones must take them to one of these stations to have them tested for CWD within 48 hours of the harvest. In addition, hunters can transport carcasses out of the zones only after all brain and spinal cord tissue have been removed. TPWD will provide a receipt for the sample.

Because the spread of CWD is evolving, regulations can change quickly. Therefore, anyone involved in hunting activity should consult the most recent Outdoor Annual for the latest regulations. To reduce the chances of spreading the disease, TPWD regulations also restrict the movement of live deer from CWD zones.

Impact on Rural Landowners CWD poses a significant threat to the future of hunting in Texas. Deer population declines of 45 and 50 percent have been documented in Colorado and Wyoming. A broad infection of Texas deer populations resulting in similar population impacts would inflict severe economic damage to rural communities and could negatively impact land markets. Specifically, those landowners seeking to establish a thriving herd of deer could avoid buying in areas with confirmed CWD infections.

As they do with anthrax-susceptible properties, land brokers may find it advisable to inquire about the status of CWD infections on properties that they present for sale. Prospective buyers should also investigate the status of the wildlife on prospective properties. In addition, existing landowners should monitor developments as TPWD crafts management strategies to identify and contain this deadly disease. 

____________________

Dr. Gilliland (c-gilliland@tamu.edu) is a research economist with the Texas Real Estate Research Center at Texas A&M University.

https://www.recenter.tamu.edu/articles/tierra-grande/oh-deer-2314

SATURDAY, DECEMBER 04, 2021 

TPWD CWD TSE PRION TRACKER UPDATE TEXAS 270 CONFIRMED TO DATE POSTIVE CAPTIVE AND WILD

https://chronic-wasting-disease.blogspot.com/2021/12/tpwd-cwd-tse-prion-tracker-update-texas.html

SATURDAY, NOVEMBER 06, 2021 

Texas adopts new management rules for chronic wasting disease in deer Nov 6, 2021

https://chronic-wasting-disease.blogspot.com/2021/11/texas-adopts-new-management-rules-for.html

TUESDAY, NOVEMBER 23, 2021 

Oh, Deer, CWD, Heading Off a Wildlife Epidemic Texas Real Estate Research Center TAMU

https://chronic-wasting-disease.blogspot.com/2021/11/oh-deer-cwd-heading-off-wildlife.html

SATURDAY, NOVEMBER 06, 2021 

Texas adopts new management rules for chronic wasting disease in deer Nov 6, 2021

https://chronic-wasting-disease.blogspot.com/2021/11/texas-adopts-new-management-rules-for.html

TEXAS LEGISLATING CHRONIC WASTING DISEASE CWD TSE PRION SPREAD?

listening in on November 4, after presentation, the QA session, 

FRIDAY, NOVEMBER 05, 2021 

Texas Parks and Wildlife Commission TPWD CWD TSE Prion November 3-4, 2021 

https://chronic-wasting-disease.blogspot.com/2021/11/texas-parks-and-wildlife-commission.html

i picked up on something that was said, there were several folks complaining that the breeders were getting picked on, and someone said something about trying to 'legislate' there way out of this. folks, this is terrible, i have seen this in other states, and it just spreads cwd even more. hell, it happened right here in Texas in the early days, that's why we are where were at now, you cannot let a bunch of Austin Legislative Socialites regulate CWD, just look what happened in Wisconsin. but i bet this attempted swaying of regulatory power shift from TPWD et al to the Texas Legislature in Austin is happening as we speak. we can't let this happen...

SUNDAY, JANUARY 22, 2017

 

Texas 85th Legislative Session 2017 Chronic Wasting Disease CWD TSE Prion Cervid Captive Breeder Industry

 

http://chronic-wasting-disease.blogspot.com/2017/01/texas-85th-legislative-session-2017.html

FRIDAY, JANUARY 27, 2017 

 

TEXAS, Politicians, TAHC, TPWD, and the spread of CWD TSE Prion in Texas 

 

http://chronic-wasting-disease.blogspot.com/2017/01/texas-politicians-tahc-tpwd-and-spread.html

SUNDAY, MAY 14, 2017 

85th Legislative Session 2017 AND THE TEXAS TWO STEP Chronic Wasting Disease CWD TSE Prion, and paying to play $$$

http://chronic-wasting-disease.blogspot.com/2017/05/85th-legislative-session-2017-and-texas.html

Powerful Abbott appointee's lobbying sparks blowback in Legislature

In an ironic twist for Gov. Greg Abbott, who has made ethics reform an urgent political priority, the Texas House is taking aim at what critics call a "pay to play" culture among his appointees.

BY JAY ROOT MAY 12, 2017 12 AM

Houston billionaire Dan Friedkin is chairman of the Texas Parks and Wildlife Commission. 

Texas Parks and Wildlife Commission

When Gov. Greg Abbott tapped one of his top campaign donors to become chairman of the Texas Parks and Wildlife Commission, he didn’t get a part-time appointee who would merely draft rules and implement conservation laws passed by the Legislature.

In Dan Friedkin, the governor got a Houston billionaire — with a team of privately funded lobbyists — willing to use his influence to ensure his wildlife interests are taken into account by the Legislature before they pass those laws, interviews and records show.

On the receiving end of that influence, and not in a happy way, is state Rep. Chris Paddie, R-Marshall. Paddie said a lobbyist working for Friedkin’s business empire, which includes a massive South Texas hunting ranch, has been working against his deer breeder management bill, which many large ranchers oppose. The state Parks and Wildlife Department oversees deer breeding regulations in Texas.

“Many times these appointees are well-heeled, very influential people,” Paddie said. “Overall, I feel that it’s inappropriate for an appointee of a board or commission to have personal lobbyists lobbying on issues related to that board or commission.”

Under Texas law, state agencies are barred from lobbying the Legislature. But the powerful people who oversee them aren’t.

If Paddie and dozens of his colleagues get their way, that practice soon will be a Class A misdemeanor.

Last weekend, Paddie attached a ban on appointee lobbying — which would apply to any issues intersecting with their state responsibilities — to an ethics bill that already had powerful friends of the governor in its crosshairs. The provision was adopted unanimously and the bill sailed out of the Texas House on a 91-48 vote Saturday.

The ethics bill, authored by Rep. Lyle Larson, R-San Antonio, would bar big campaign donors from getting appointed by governors in the first place. Anyone who contributed over $2,500 would be barred from serving on state boards and commissions.

Larson pointed to news articles documenting the amount of campaign money appointees have collectively given governors. Last year the San Antonio Express-News calculated that Abbott had received nearly $9 million from people he’s picked for appointed office; before that, a widely cited report from Texans for Public Justice found former Gov. Rick Perry had received $17 million from his own appointees.

Larson said 20 years from now, Texans will be reading the same stories about a future governor unless the Legislature does something about it now.

“We’ve read that article for the last three decades,” Larson said during a brief floor speech. “This is your opportunity to say, 'We need to stop this.' The most egregious ethics violation we’ve got in the state is the pay to play in the governor’s office.” 

A prodigious fundraiser, Abbott has put plenty of big donors on prestigious boards and commissions. On the Parks and Wildlife Commission alone, he has installed three mega-donors — pipeline mogul Kelcy Warren, who’s given Abbott more than $800,000 over his statewide political career; Houston businessman S. Reed Morian, who has given $600,000; and Friedkin, who personally donated more than $700,000 — while his Gulf States Toyota PAC gave Abbott another $100,000, according to Ethics Commission records. 

Passage of Larson’s HB 3305 represents an ironic twist for Abbott, who for the second session in a row has made ethics reform an urgent political priority — resulting in a bill that's now taking aim at his gubernatorial appointments. Abbott, who has made a habit of ignoring tough questions, hasn't made any public statements about the bill, and his office did not respond to multiple requests for comment.

Friedkin — whose wealth is estimated at $3.4 billion by Forbes — is the owner and CEO of Gulf States Toyota, founded in 1969, which has had the exclusive rights to distribute new Toyotas in Texas and four nearby states. He’d also been a mega-donor to former Gov. Rick Perry, who first appointed Friedkin to the Parks and Wildlife Commission in 2005. Abbott made Friedkin chairman of the commission in 2015.

Requests for comment from Friedkin's office went unanswered.

In addition to his public role as parks and wildlife chairman, a perch that gives him significant influence over deer management issues, Friedkin has private wildlife interests. He owns the sprawling Comanche Ranch in South Texas, according to published news accounts.

The January 2014 edition of Texas Wildlife, published by the Texas Wildlife Association, described Friedkin’s Comanche Ranch as “privately owned and privately hunted” and said it’s “in the business to produce as many trophy bucks as possible, without damaging the native habitat.”

The association, which advocates for private landowners and hunting rights, has locked horns with deer breeding interests at Parks and Wildlife and the Capitol. They compete against each other in the lucrative trophy deer hunting market — and the battle between them perennially spills into the rule-making process at the Parks and Wildlife Commission.

One of their battles centers on how captive deer are tagged so that game wardens and others can distinguish them from native deer. Current law requires a combination of tags and tattoos, and the ranchers and large landowners want to keep it that way. The breeders, meanwhile, favor tagging deer with microchips, which they contend are more accurate and foolproof. 

The Wildlife Association said in a Facebook post that removing visible tag or tattoo requirements and allowing microchip tracking “creates real biosecurity risks and blurs ethical lines in the hunting community, as captive deer breeders are allowed to transport and release these animals to be co-mingled with pasture-born deer.” Proponents of the current system say tough rules on breeders are needed to keep out imported deer that may carry Chronic Wasting Disease, which has been found in Texas.

On the other side of the issue is the Texas Deer Association, which represents breeder interests. Executive Director Patrick Tarlton said opposition to his $1.6 billion industry stems less from environmental and health concerns and more from wealthy ranch owners who want to boost profits from trophy-seeking hunters. He notes that Chronic Wasting Disease has been found in both free range and captive deer.

Paddie sided with the breeders by filing House Bill 2855, which would allow breeders to track their deer with microchips instead of relying on physical tags that they say can be torn off.

No one identifying themselves as a Friedkin corporate lobbyist opposed the deer breeding bills during public hearings, according to House and Senate committee records published online.

Behind the scenes, it was a different story. 

Paddie said his chief of staff reached out to Laird Doran, one of several lobbyists for Friedkin’s Gulf States Toyota, after hearing that he was trying to convince other legislators to help defeat Paddie's deer microchip bill.

“My chief called him and said, 'Hey, if you’ve got a problem with our bill why aren’t you talking to us?’ ” Paddie said. “He said he represented the Friedkin Group when that happened.” 

According to an email from an aide to Sen. Craig Estes, R-Wichita Falls, who is carrying the deer breeding bill in the Senate, Doran also identified himself as a representative of the “Friedkin Group.” That’s the name of the consortium that contains Friedkin's Gulf States Toyota, according to the company’s Linked-In page. He told Estes’ aide that the Friedkin group was opposed to any bill that would “remove requirements for (deer) ear tags,” the senator’s office confirmed. 

It’s not clear exactly which Friedkin interests Doran was advancing. Doran is registered at the Texas Ethics Commission with a single entity — Gulf States Toyota — and the agency has no record of a lobbyist working for an entity or individual with the name Friedkin in it, the commission confirmed Wednesday afternoon.

However, Doran checked a variety of non-automotive subject areas in which he is lobbying during this legislative session on behalf of Friedkin’s lucrative distributorship, including “animals,” “parks & wildlife,” “state agencies, boards & commissions,” “environment” and more, his detailed lobby disclosures show.

Doran, director of government relations and senior counsel at the Friedkin Group, did not return phone and email messages left by The Texas Tribune.

Estes said he didn’t have a problem with a governor's appointee engaging in lobbying on issues that affected their private interests, as long as they keep that separate from their state roles. 

“I don’t think they should be barred from expressing their views as long as they’re careful to say these are my views, not the views of the agency I’m representing,” Estes said.

But Tarlton, the deer association director, said Friedkin’s use of lobbyists to oppose deer breeders in the Legislature gives the breeders' opponents a huge advantage.

“I think that if the commissioner of Texas Parks and Wildlife is actively lobbying against an industry which his department directly oversees, it absolutely sets up an unfair and closed system of government,” Tarlton said. “The commission is supposed to be the unbiased and equitable oversight for everything wildlife.”

Paddie hopes his amendment to Larsen's ethics bill will even the playing field. He referred to the wealthy Parks and Wildlife chairman (see the 2:29:00 mark in this recorded exchange) when he tacked the appointee-lobbying provision onto Larson’s bill.

Paddie said he’s not singling out anyone. He said it would apply to other powerful gubernatorial appointees in a position to do the same. 

“I could have named any number of examples as far as the agencies in particular,” Paddie said. “I want to stop it if anyone serving on any agency is doing this.” 

Ryan Murphy contributed to this report.

Disclosure: The Texas Wildlife Association, Texas Parks and Wildlife Department and Gulf States Toyota have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

https://www.texastribune.org/2017/05/12/powerful-abbott-appointees-lobbying-sparks-blowback-legislature/

TUESDAY, AUGUST 02, 2016

 

TEXAS TPWD Sets Public Hearings on Deer Movement Rule Proposals in Areas with CWD Rule Terry S. Singeltary Sr. comment submission

 

http://chronic-wasting-disease.blogspot.com/2016/08/texas-tpwd-sets-public-hearings-on-deer.html

 

SUNDAY, MAY 22, 2016

 

TEXAS CWD DEER BREEDERS PLEA TO GOVERNOR ABBOTT TO CIRCUMVENT TPWD SOUND SCIENCE TO LET DISEASE SPREAD

 

http://chronic-wasting-disease.blogspot.com/2016/05/texas-cwd-deer-breeders-plea-to.html

Wednesday, May 04, 2016

 

TPWD proposes the repeal of §§65.90 -65.94 and new §§65.90 -65.99 Concerning Chronic Wasting Disease - Movement of Deer Singeltary Comment Submission

 

http://chronic-wasting-disease.blogspot.com/2016/05/tpwd-proposes-repeal-of-6590-6594-and_4.html

Terry S. Singeltary Sr. Your opinions and comments have been submitted successfully. Thank you for participating in the TPWD regulatory process.

Wednesday, October 28, 2015

Interim Chronic Wasting Disease Response Rules Comment online through 07:00 a.m. November 5, 2015

http://chronic-wasting-disease.blogspot.com/2015/10/interim-chronic-wasting-disease.html 

Texas 84th Legislative Session Sunday, December 14, 2014 

*** TEXAS 84th Legislature commencing this January, deer breeders are expected to advocate for bills that will seek to further deregulate their industry 

http://chronic-wasting-disease.blogspot.com/2014/12/texas-84th-legislature-commencing-this.html

TUESDAY, DECEMBER 16, 2014 

Texas 84th Legislature 2015 H.R. No. 2597 Kuempel Deer Breeding Industry TAHC TPWD CWD TSE PRION 

http://chronic-wasting-disease.blogspot.com/2014/12/texas-84th-legislature-2015-hr-no-2597.html

SUNDAY, FEBRUARY 16, 2020 

***> Jerking for Dollars, Are Texas Politicians and Legislators Masturbating Deer For Money, and likely spreading CWD TSE Prion? 

https://chronic-wasting-disease.blogspot.com/2020/02/jerking-for-dollars-are-texas.html

http://chronic-wasting-disease.blogspot.com/2014/07/supercalifragilisticexpialidocious-or.html

TEXAS CWD

''CWD has been detected in 261 captive or free ranging cervids in 14 counties, including white-tailed deer, mule deer, red deer and elk. To date, 168 of those of those positives are from captive breeding facilities or associated release sites and 68 are from free-ranging populations.''

Hunters taking advantage of Texas Public Hunting Lands must also have the Annual Public Hunting Permit. It’s also important for public land hunters to consult the Public Hunting Lands Map Booklet to review regulations that may apply to specific areas. The My Texas Hunt Harvest app can be used to complete on-site registration electronically at a public hunting area.

The discovery of new cases of Chronic Wasting Disease (CWD) has prompted TPWD to establish new containment and surveillance zones to mitigate the potential spread of CWD. TPWD recommends hunters review information about testing requirements and carcass movement restrictions in the CWD zones for the 2021-22 season before heading out to the field. 

CWD is slow, progressive and fatal neurological disease found in certain cervids, including deer, elk, moose and other members of the deer family. Due to long incubation periods, affected cervids do not show visible signs of illness until years after they are infected.

CWD was first discovered in Texas in 2012 in free-ranging mule deer along a remote area of the Hueco Mountains near the Texas-New Mexico border. Since then, it has been detected in 261 captive or free ranging cervids in 14 counties, including white-tailed deer, mule deer, red deer and elk. To date, 168 of those of those positives are from captive breeding facilities or associated release sites and 68 are from free-ranging populations.

Landowners and hunters play a critical role in managing CWD. The most effective way for them to help slow the spread of CWD is to report sick deer to a TPWD biologist, properly dispose of inedible carcass parts, and to voluntarily test their harvests by taking them to a local check station or contacting a TPWD biologist in their area.

By adhering to CWD regulations and recommendations, hunters, landowners, and communities are helping to ensure that native deer populations remain healthy and plentiful for years to come, allowing for the conservation of the species and preservation of Texas’ hunting heritage and traditions.

https://tpwd.texas.gov/newsmedia/releases/?req=20211020a

TERRY SINGELTARY CWD HISTORY TEXAS

Date: Sun, 25 Aug 2002 19:45:14 –0500

From: Kenneth Waldrup

To: flounder@wt.net

snip...see ;

http://chronic-wasting-disease.blogspot.com/2012/07/texas-animal-health-commission.html

TERRIBLE NEWS for Texas for sure, and the good Doctor brings much needed attention to a topic no one wants to talk about, and i have been trying to bring awareness to this very topic for decades, 5 or 6 years quarantine is NOT LONG ENOUGH FOR CWD TSE PRION !!!

QUARANTINE NEEDS TO BE 21 YEARS FOR CWD TSE PRION !

3. INDEMNITY, NO MORE Federal indemnity program, or what i call, ENTITLEMENT PROGRAM for game farm industry. NO MORE BAIL OUTS FROM TAX PAYERS. if the captive industry can't buy insurance to protect not only themselves, but also their customers, and especially the STATE, from Chronic Wasting Disease CWD TSE Prion or what some call mad deer disease and harm therefrom, IF they can't afford to buy that insurance that will cover all of it, then they DO NOT GET A PERMIT to have a game farm for anything. This CWD TSE Prion can/could/has caused property values to fall from some reports in some places. roll the dice, how much is a state willing to lose? 

https://downloads.regulations.gov/APHIS-2018-0011-0003/attachment_1.pdf

Published: 06 September 2021

Chronic wasting disease: a cervid prion infection looming to spillover

Alicia Otero, Camilo Duque Velásquez, Judd Aiken & Debbie McKenzie 

Veterinary Research volume 52, Article number: 115 (2021) 

https://veterinaryresearch.biomedcentral.com/articles/10.1186/s13567-021-00986-y

MONDAY, NOVEMBER 29, 2021 

HOW MANY DEER DIE FROM CWD TSE PRION?

https://chronic-wasting-disease.blogspot.com/2021/11/how-many-deer-die-from-cwd-tse-prion.html

SUNDAY, DECEMBER 19, 2021

Detection of two dissimilar chronic wasting disease isolates in two captive Rocky Mountain elk (Cervus canadensis) herds Two distinctive chronic wasting disease isolates identified in captive elk

https://chronic-wasting-disease.blogspot.com/2021/12/detection-of-two-dissimilar-chronic.html

SUNDAY, DECEMBER 12, 2021 

ARS RESEARCH Generation of human chronic wasting disease in transgenic mice

https://chronic-wasting-disease.blogspot.com/2021/12/ars-research-generation-of-human.html

THURSDAY, DECEMBER 16, 2021 

RT‑QuIC detection of CWD prion seeding activity in white‑tailed deer muscle tissues

https://chronic-wasting-disease.blogspot.com/2021/12/rtquic-detection-of-cwd-prion-seeding.html

THURSDAY, DECEMBER 16, 2021 

Detection of CWD prions in naturally infected white‑tailed deer fetuses and gestational tissues by PMCA

https://chronic-wasting-disease.blogspot.com/2021/12/detection-of-cwd-prions-in-naturally.html

*****WARNING***

I CANNOT STRESS ENOUGH THE IMPORTANCE OF PROPER USE OF TOOLS WHILE PROCESSING YOUR VENISON, AND DO NOT CUT YOURSELF, WEAR GOOD GLOVES!

Saturday, December 18, 2021 

Direct neural transmission of vCJD/BSE in macaque after finger incision 

https://itseprion.blogspot.com/2021/12/direct-neural-transmission-of-vcjdbse.html

MONDAY, NOVEMBER 02, 2020 

Successful transmission of the chronic wasting disease (CWD) agent to white-tailed deer by intravenous blood transfusion 

https://chronic-wasting-disease.blogspot.com/2020/11/successful-transmission-of-chronic.html

Thursday, July 29, 2021 

TSE PRION OCCUPATIONAL EXPOSURE VIA ANIMAL OR HUMAN, iatrogenic transmission, nvCJD or sCJD, what if? 

https://itseprion.blogspot.com/2021/07/tse-prion-occupational-exposure-via.html

FRIDAY, NOVEMBER 19, 2021 

EFSA Annual Report of the Scientific Network on BSE-TSE 2021

https://efsaopinionbseanimalprotein.blogspot.com/2021/11/efsa-annual-report-of-scientific.html

TUESDAY, DECEMBER 14, 2021

Transmissible Spongiform Encephalopathy TSE Prion end of year report December 14, 2021

https://transmissiblespongiformencephalopathy.blogspot.com/2021/12/transmissible-spongiform-encephalopathy.html

Terry S. Singeltary Sr., Bacliff, Texas USA 77518