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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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