In response to comments, §65.95(b)(1) was modified to simplify the mechanisms for obtaining TC 1 status by providing two methods of achieving TC 1 status, in addition to the "fifth year" or "certified" TAHC herds. The first method recognizes that there are some deer breeding facilities that, although not "fifth year" or "certified status," have been testing at a high level for a number of years. Under the first method, a breeding facility will be designated as a TC 1 breeding facility if it has submitted "not detected" test results for at least 80 percent of the total number of eligible mortalities over the preceding five report years, provided the number of "not detected" results is equivalent to or greater than the sum of the eligible-aged population in the facility at the end of each report year and the eligible mortalities during the five-year period, multiplied by 3.6 percent. This option is similar to the option provided in §65.95(b)(1)(A)(ii) of the proposed rules. However, the rule as adopted allows TC 1 status to be attained by providing "not detected" test results for 80 percent of the total number of eligible mortalities over the preceding five-year period, rather than 80 percent of eligible mortalities in each year of the preceding five-years.

In lieu of the other two options contained in proposed §65.95(b)(1)(A)(iii) and (iv) for achieving TC 1 status more quickly, the rules as adopted provide a simplified option for achieving TC 1 status more quickly. Under this option, a deer breeder can obtain TC 1 status by submitting "not detected" ante-mortem test results for at least 50 percent of the eligible-aged deer in the facility as of the date on which ante-mortem testing begins. However, to facilitate the transition to the new rules, and recognizing that in anticipation of the adoption of these rules some deer breeders may have already begun conducting ante-mortem testing but not yet tested 50 percent of eligible-aged deer, a temporary provision is included to allow a breeding facility that submits "not detected" ante-mortem test results for at least 25 percent of the eligible aged deer in the facility to be temporarily classified as TC 1; however, the facility must provide the balance of the required tests by May 15, 2017.

In addition, the change eliminates proposed §65.95(b)(1)(B) regarding the failure to comply with TC 1 testing requirements. Under the rules as proposed, a TC 1 breeding facility that ante-mortem tested 80% of the eligible deer in the facility but failed to submit the required post-mortem test results to retain its TC 1 status would be reduced in status to a TC 2 facility, but would have been given a 60-day window to submit the substitution test results necessary to regain TC 1 status. If, however, a TC 1 breeding facility that had been reduced in status for failure to provide sufficient post-mortem test results did not provide sufficient substitution test results within the 60-day period to regain TC 1 status, the breeding facility would not be eligible to regain TC 1 status for two years. This was necessary due to the higher minimum post-mortem testing standard set forth for TC 1 status as opposed to the lower standard for basic MQ testing requirements. Conversely, the MQ requirements in §65.94(b), as proposed and as adopted, provide that a breeding facility that has been designated as NMQ for failure to comply with the MQ testing requirements, would be restored to MQ upon submission of the required test results. Because the adopted rule applies a standard MQ testing requirement to all facilities, it is unnecessary to retain the requirement for regaining TC 1 status within 60-days, as the provisions for regaining MQ status will suffice, so long as lower status breeder deer are not introduced into the TC 1 facility.

The change to §65.95(b) also modifies proposed paragraph (3)(A) and (C) to add the word "quarantine" to the list of TAHC actions that could result in the designation of a breeding facility as a TC 3 facility. A TAHC quarantine would prevent movement of deer. As a result, it is necessary to include quarantine, in addition to other TAHC actions impacting the movement of deer.

Several changes are made to §65.95(c), which addresses release sites. As proposed, §65.95(c)(1)(A) stipulated that a release site consisted solely of the specific tract of land to which deer are released and acreage designated as a release site. However, commenters were concerned that this provision would prevent a landowner from altering the release site by removing cross-fencing or making other changes following changes in ownership. The department has determined that such release site modifications need not be prohibited, although any testing obligations should also apply to the new acreage. Therefore, the change allows modification of the release site description provided the department is notified prior to the physical modification.

As proposed, §65.95(c)(1)(B) stipulated that liberated breeder deer must have complete, unrestricted access to the entirety of the release site. This provision was intended to ensure clarity regarding the sites on which release site testing obligations apply. As a result of public comment, the department determined that there are circumstances under which a landowner legitimately should be able to exclude deer from certain areas, such as landing strips and crops. Therefore, the change allows the exclusion of deer for purposes of human safety or the protection of agricultural resources.

As proposed, §65.95(c)(1)(C) stipulated that breeder deer could be liberated only to release sites surrounded by a fence capable of retaining deer at all times and that the owner of the release site was required to ensure the integrity of gates and fencing. As a result of public comment, the department determined that it was necessary to acknowledge that the provision is subject to mitigating circumstances such as natural disasters and other unintentional disruptors. Therefore, the change specifies that infrastructure integrity be maintained under "reasonable and ordinary" circumstances.

As proposed, §65.95(c)(1)(D) would have release-site testing requirements continue in effect for five consecutive years following the date of each liberation that resulted in release-site testing. With the elimination of the proposed release-site testing requirements after March 1, 2019 (except for sites that have not submitted the required test results), the five-year time period is no longer necessary. In addition, for consistency with subsection (c)(3), a statement was added regarding the requirement that a release site submit release site test results until the release site's testing obligations have been satisfied, regardless of the March 1, 2019 general expiration of Class II release site testing.

The change to §65.95 also rewords subsection (c)(2) to provide that a facility will be considered a Class I release site if (in addition to not being a Class II of Class III release site), it receives deer only from a TC 1 facility after August 15, 2016. As noted elsewhere in this preamble, the department intends for the rules to go into effect August 15, 2016. Under the provisions of §65.98 as adopted, a release site that is in compliance with the provisions of the Interim Breeder Rules as of August 15, 2016 will not be subject to release site testing until deer are liberated onto the release site that would trigger release site testing under the rules as adopted. Since release sites that were compliant with the Interim Rules will be "reset," it is necessary to clarify that the release of deer from other than a TC 1 facility prior to August 15, 2016 will not result in a compliant release site being considered other than a Class I release site, so long as the only breeder deer released on the release site after August 15, 2016, are from TC 1 facilities.

The change to §65.95 also alters (c)(3) to replace the testing obligations for Class II release sites with a less complicated standard and to provide for the expiration of Class II release site testing. As discussed earlier in this preamble, the changes to the proposed rulemaking are intended to address public comment and reflect intensive interactions with the regulated community and stakeholder groups, particularly the desire to minimize or eliminate release-testing obligations. Therefore, the change to §65.95(c) requires Class II release sites to test the first deer harvested and every deer harvested after the first deer, with no release-site owner required to test more than 15 deer in a single season for each year that release site testing is required. As proposed, Class II release site owners would have been required to provide "not detected" test results for 50 percent of harvested liberated breeder deer or, if no liberated breeder deer were harvested, 50 percent of hunter-harvested deer, and would have been required to test for a minimum of five years following any release of TC 2 deer. However, in an effort to simplify the requirements, which will in turn facilitate compliance and enforcement, the rules as adopted provide for testing up to the first 15 deer harvested at the release site. After analyzing 2015-2016 harvest data at Class II release sites, the department concluded that requiring every deer harvested at a site (but not more than 15) to be tested would enhance the level of release site testing at most sites. Thus, the change results in a simpler standard that is easier to comply with and enforce while remaining epidemiologically efficacious.

The change to §65.95(c)(3) also provides for the expiration of release site testing for Class II release sites in subparagraph (C). As discussed above, in response to comments and concerns about release site testing, required release site testing is being eliminated after March 1, 2019. However, the expiration of release site testing does not obviate the requirement that release sites provide required tests. Therefore, §65.95(c)(3)(C) provides that release site testing for Class II release sites expires on March 1, 2019, for release sites that are in compliance with the release site testing requirements. For release sites that are not compliant with release site testing requirements, the requirements shall continue until the required tests have been submitted.

Finally, the change to §65.95 adds an inadvertently omitted pronoun "it" and to add the term "quarantine" in subsection (c)(4)(A)(ii), for the same reason discussed in the change to §65.95(b) previously in this preamble.

Changes to Movement of DMP Deer

The change to §65.96, concerning Movement of DMP Deer, replaces the CWD testing obligations in proposed paragraph (1)(B) with a requirement for the landowner of the release site to test the first hunter-harvested deer and every hunter-harvested deer thereafter, but no more than 15 hunter-harvested deer are required to be tested in a single season. The change is made for the same reasons discussed in the change to testing requirements for Class II release sites discussed in the changes to §65.95(c).

The change to §65.96(1) also adds subparagraph (C) to clarify the expiration of release site testing on March 1, 2019, and the obligation to continue to provide test results until test result submission requirements have been met, regardless of the March 1, 2019 release site testing expiration. The reason for this change is the same as was discussed in connection with the changes to §65.95(c)(3)(C), above.

The change to §65.96 also alters paragraph (2) to clarify that the department will not authorize the transfer of deer to a DMP facility from a Class III release site or from a release site or breeding facility that is not in compliance with the testing requirements of the section. As proposed, the transfer of a deer to a DMP facility from a TC 3 breeding facility would not be authorized. However, like deer in a TC 3 breeding facility, deer from a Class III release site or a release site that is not in compliance with applicable rules also pose a higher risk of having been exposed to CWD. A Class III release site is an unsuitable source of deer for DMP activities because it has received exposed deer or is under a hold order or quarantine issued by TAHC. Also, under §65.97 as proposed and as adopted, the department will not issue a Triple T permit for any trap site that has received breeder deer within the previous five years. A Triple T permit is the only method by which deer may be introduced to a DMP facility other than by deer breeder permit or by trapping of free-ranging deer resident on the property for which the DMP is issued. Additionally, any source of deer that is delinquent or deficient in complying with CWD testing obligations should not be authorized to transfer deer because of the possibility of spreading CWD. The change to §65.96(2) will provide greater consistency with the provisions regarding Triple T permits in §65.97.

Changes to Testing and Movement of Deer Pursuant to Triple T or TTP Permit

The change to §65.97(a)(1) stipulates that "unless expressly provided otherwise in this section," the disease detection provisions of 31 TAC §65.102 cease effect upon the effective date of the new section. Because of the change to §65.97(a)(5) to reference the marking requirements of §65.102, it is necessary to recognize that a provision of §65.102 will continue to apply.

The change to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, alters subsection (a)(5) to clarify that the tagging requirements imposed by the rule as adopted are in addition to existing identification requirements imposed by current regulation at 31 TAC §65.102. The department received several comments concerning the tagging of deer released pursuant to a Triple T permit. This change is necessary to ensure clarity. In addition, as a result of public comment, the testing requirement for Triple T release sites was eliminated. As a result, provisions requiring or referencing release site testing in subsection (a)(9)-(12) have been removed. The requirement to conduct trap site testing, in addition to the limitations on the sites from which deer may be trapped, has been determined to be epidemiologically sufficient to dispense with required Triple T release site testing.

Changes to Transition Provisions

The change to §65.98, concerning Transition Provisions, alters the provisions of proposed subsection (c) to harmonize the rule with the changes made to §65.94 and §65.95, discussed earlier in this preamble. The change allows Class I release sites that receive breeder deer from a TC 2 breeding facility after the effective date of the rule to be designated Class I at the close of the 2016/17 hunting year if release site complies with all testing requirements in that season and the source breeding facility or facilities have subsequently become TC 1 or all deer received from TC 2 source facilities are harvested and tested with "not detected" test results. In addition, subsection (d)(1) (subsection (c)(1) as proposed) was modified to specify that noncompliant release sites must comply with the adopted rules' requirements for three "consecutive" years. In addition, subsection (d)(2) (subsection (c)(2) as proposed) was modified to clarify that noncompliant release sites would be ineligible to receive deer transferred pursuant to a DMP, in addition to a Triple T permit.

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). In addition, the department may issue permits authorizing the trapping, transporting and processing of surplus white-tailed deer (popularly referred to as TTP permits) and permits for the removal of urban white-tailed deer.

Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of captive-raised deer within a facility for breeding purposes and the release of such deer. 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. There are currently approximately 1,200 permitted deer breeders (operating more than 1,250 deer breeding facilities) in Texas.

Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, and Deer Management Permit (DMP) regulations for white-tailed deer at 31 TAC Chapter 65, Subchapter D, the department may allow the temporary possession of free-ranging white-tailed or mule deer for propagation within an enclosure on property surrounded by a fence capable of retaining deer. At the current time, there are no rules authorizing DMP activities for mule deer.

In addition, department regulations authorize the introduction of a deer from a deer breeding facility into a DMP facility for propagation. Deer breeders are permitted under Parks and Wildlife Code, Chapter 43, Subchapter L and 31 TAC Chapter 65, Subchapter T.

The new rules include requirements regarding the release, retention and movement of deer pursuant to DMPs, Triple T permits, TTP permits, and deer breeder permits.

CWD Background

The department and TAHC have been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas. TAHC is the state agency authorized to manage "any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable, even if the agent of transmission is an animal species that is not subject to the jurisdiction" of TAHC. Tex. Agric. Code §161.041(b).

As a result, the department and the TAHC have worked closely to protect susceptible species of exotic and native wildlife from CWD, and developed a Chronic Wasting Disease Management Plan (the Plan) to guide the department and TAHC in addressing risks, developing management strategies, and protecting big game resources from CWD in captive or free-ranging cervid populations. The most recent version of the Plan was finalized in March 2015. Much of the information provided in this preamble is also contained in the Plan.