Commission Agenda Item No. 7
Presenter:  Mitch Lockwood

Action
Disease Detection and Response – Chronic Wasting Disease
November 8, 2012

I.       Executive Summary:  This item presents for adoption proposed new rules governing the department’s regulatory response to the detection or expected detection of Chronic Wasting Disease (CWD) in Texas.  The proposed amendments would:

II.      Discussion:  CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, and others (susceptible species).  It is classified as a 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).  The department has been concerned for over a decade about the possible emergence of CWD in wild and captive deer populations in Texas.  The department closed the Texas border in 2005 to the entry of out-of-state captive white-tailed and mule deer and has increased regulatory requirements regarding disease monitoring and recordkeeping.  Since 2002, the department has tested more than 26,500 wild deer in Texas for CWD, and cervid producers have submitted more than 7,400 test results to the department.

In February of 2012, the department’s concern about the emergence of CWD in Texas escalated when the New Mexico Game and Fish Department notified the department that CWD had been detected in three mule deer taken by hunters in the Hueco Mountains, within two miles of the Texas border.  Therefore, the department and the Texas Animal Health Commission (TAHC) reconstituted the CWD Task Force, a group of wildlife-health professionals and cervid producers, to make recommendations on how best to defend wild and captive populations of deer in Texas from the spread of CWD.  The Task Force recommended that the department take specific actions, including the designation of a CZ, HRZ, and BZ surrounding the geographical points where CWD has been detected and both the imposition of elevated disease monitoring and restrictions on deer-management practices within the zones.  The department and TAHC concurred and the department developed the proposed rules (located at Exhibit A).  Beginning with the 2012-13 hunting seasons, the department will also implement mandatory check stations in CZs and voluntary check stations in HRZs for hunter-killed deer under the existing authority of 31 TAC §65.33, concerning Mandatory Check Stations.

In July of 2012, the department confirmed CWD in two mule deer taken in the Hueco Mountains in Texas as part of a department surveillance effort.  As a result, the department response is no longer theoretical.

The Regulations Committee at its May 2012, meeting authorized staff to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the October 5, 2012, issue of the Texas Register (37 TexReg 7955-5965).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.     Recommendation:  Staff recommends that the commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts new §§65.80-65.88, concerning Disease Detection and Response, with changes as necessary to the proposed text as published in the October 5, 2012, issue of the Texas Register (37 TexReg 7955-7965).”

Attachments — 1

  1. Exhibit A - Proposed Rules

Commission Agenda Item No. 7
Exhibit A

DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (the department) proposes new § §65.80-65.88, concerning Chronic Wasting Disease. The proposed new rules, if adopted, will be in new Subchapter B, concerning Disease Detection and Response, within Chapter 65. On July 10, 2012, the department confirmed the first known cases of wildlife infected with Chronic Wasting Disease (CWD) in Texas. Texas now joins 20 other states and two Canadian provinces where CWD has been detected in free-ranging or captive environments. The proposed new rules are a result of cooperation between the department and the Texas Animal Health Commission (TAHC) to protect susceptible species of exotic and native wildlife from CWD. TAHC is the state agency charged with disease management in livestock and exotic species. The rules proposed by TAHC regarding CWD in livestock and exotic species were published in the July 6, 2012, issue of the Texas Register (37 TexReg 5061).

         In general, to minimize the risk of CWD expanding beyond the area(s) in which it currently exists, the department’s proposed new rules: (1) define geographic areas the department has determined, using the best available science and data, where the detection of CWD in Texas has occurred or is probable (Containment Zones), where the presence of CWD could reasonably be expected (High Risk Zones), and where there is an elevated probability of discovering CWD (Buffer Zones); (2) increase disease monitoring requirements and/or restrict activities conducted under any permits authorizing the capture, release, or possession of live cervid species (cervids are a family of animals including deer, elk, moose, and caribou) regulated by the department (white-tailed deer and mule deer) in a CZ, HRZ, or BZ; and (3) authorize the department’s executive director to declare other geographic areas that meet the regulatory definition as a CZ, HRZ, or BZ.

         CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, and others (susceptible species). It is classified as a 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). 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. What is known is that CWD is invariably fatal, and is transmitted directly through deer-to-deer contact and indirectly through environmental contamination. Moreover, a high prevalence of the disease in wild populations correlates with significant deer population declines and there is evidence that hunters tend to avoid areas of high CWD prevalence. The implications of CWD for Texas and its multi-billion dollar ranching, hunting, and wildlife management economies are significant.

         The department has been concerned for over a decade about the possible emergence of CWD in wild and captive deer populations in Texas. Since 2002, more than 26,500 “not detected” CWD test results were obtained from “free ranging” deer in Texas. Additionally, deer breeders have submitted more than 7,400 “not detected” test results to the department. The department closed the Texas border in 2005 to the entry of out-of-state captive white-tailed and mule deer and has increased regulatory requirements regarding disease monitoring and record keeping (31 TAC  §65.604). (In 2010, TPWD clarified that the border closure was also to prevent the spread of other diseases, including bluetongue virus, Epizootic Hemorrhagic Disease Virus, Malignant Catarrhal Fever, and Adenovirus Hemorrhagic Disease (35 TexReg 252)).

         In February of 2012, the department’s concern about the emergence of CWD in Texas escalated when the New Mexico Game and Fish Department notified the department that CWD had been detected in three mule deer taken by hunters in the Hueco Mountains within two miles of the Texas border. Mule deer movements in the Trans Pecos area of Texas can be 25-30 linear miles or more for an individual animal, creating the possibility that the CWD-positive mule deer reported by New Mexico may have been in Texas or had contact with mule deer now in Texas. Therefore, the department and TAHC reconstituted the CWD Task Force, comprised of wildlife-health professionals and cervid producers.

         Concurrent with the reconstitution of the CWD Task Force, the department, with the assistance and cooperation of landowners and other governmental entities, including TAHC, increased CWD surveillance and detection efforts, including the collection of 31 mule deer samples along the Texas side of the New Mexico border. On July 10, 2012, the department confirmed that two mule deer taken in the Texas portion of the Hueco Mountains tested positive for CWD.

         As a result of the discovery of CWD in the Hueco Mountains of New Mexico and Texas, the CWD Task Force recommended that the department take specific actions, including the designation of a CZ, HRZ, and BZ surrounding the geographical points where CWD has been detected or where the elevated probability of discovering CWD exists, requiring increased disease monitoring, and the restriction of department-permitted deer-management practices within those zones. The department and TAHC concurred. TAHC developed rules regarding livestock and exotic species, and the department developed the proposed rules regarding native wildlife. The department will also implement mandatory check stations in the proposed CZ and voluntary check stations in HRZs for hunter-harvested deer under authority of 31 TAC  §65.33, concerning Mandatory Check Stations.

        Under Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1, the department regulates the possession of white-tailed deer and mule deer for various purposes by permit. Subchapter C governs permits for scientific research, zoological collection, rehabilitation and educational display of protected wildlife which may include deer. Subchapter E governs Triple T activities (trap, transport and transplant), in which game animals or game birds are captured and relocated to adjust populations. Subchapter E also governs Urban White-tailed Deer Removal Permits and Permits to Trap, Transport, and Process Surplus White-tailed Deer. The permits issued under authority of Subchapter E are collectively referred to as “Triple T” permits. Subchapter L governs Deer Breeder Permit (DBP) activities, which include, among other things, retention of captive-raised deer within a facility for breeding purposes and release of such deer into the wild. Subchapters R and R-1 govern Deer Management Permit (DMP) activities for white-tailed deer and mule deer, respectively, in which free-ranging deer may be captured and temporarily retained for breeding purposes. [The department notes that although DMPs for mule deer were authorized by the legislature in 2011, no DMPs for mule deer have been issued because the department has deferred promulgation of regulations pending acquisition of requisite data to develop biologically defensible rules and address disease threats, including CWD.]

        Triple T, DBP and DMP all authorize release of deer into the wild under certain circumstances following some period of confinement, and the regulations governing Triple T and DBP contain requirements for disease monitoring that must be met before deer can be acquired, transported, or released. Additionally, Parks and Wildlife Code, Chapter 43, Subchapter C, governs the issuance of permits for scientific research, zoological collection, rehabilitation, and educational display of protected wildlife (including cervids), any of which can include permit conditions for release to the wild.

        From an epidemiological point of view, the higher the density of susceptible organisms, the more likely disease transmission is to occur. Obviously, deer kept in circumstances (facilities, pens, trailers, etc.) in which densities are many times higher than what occurs naturally are more likely to both manifest and spread communicable diseases at a higher rate or in greater numbers than would occur in a free-ranging populations. Therefore, the proposed new rules are designed and intended to provide reasonable assurance that once CWD is detected it is quickly isolated and not spread as a result of increased concentration of deer or the movement of live deer under permits issued by the department.

        Proposed new §65.80, concerning Definitions, sets forth the meanings of words and terms used in the subchapter, which is necessary to ensure that specialized terms are unambiguously defined for purposes of compliance and enforcement.

         Proposed new §65.80(1) would define the term “adult deer.” The testing requirements set forth in proposed new §65.83, concerning Buffer Zone (BZ) would condition the department’s approval of a permit to trap deer within a BZ on the submission and “not detected” results of CWD tests. Similarly, under proposed new §65.82 and §65.83, certain activities under a DBP would require the permittee to comply with certain disease testing requirements. Current CWD testing is most accurate in deer older than 16 months of age. Therefore, for ease of reference, the term “adult deer” is defined as deer older than 16 months of age. The term “adult deer” is also used in the definition of “eligible mortality” in §65.80(4).

         Proposed new §65.80(2) would define the term “buffer zone” or “BZ” as a “department-defined geographic area in this state adjoining or surrounding an HRZ (high risk zone), within which the department, using the best available science and data, has determined that an elevated probability of discovering CWD exists.” The department has determined that the most efficacious response to either the detection of CWD or a heightened expectation of detection of CWD would be the creation of a three-tiered geographical area around the detection site (the specific geographical location where CWD is detected). The area immediately surrounding or in closest proximity to the detection site would be a “containment zone (CZ),” within which the department would restrict the movement and release of susceptible species held under permits administered by the department. The CZ would be surrounded by a HRZ, within which movement requirements would be less restricted. The HRZ, in turn, would be adjoined by the BZ, within which deer movement under department permits would be allowed to take place under monitoring requirements not as stringent as those within an HRZ but more stringent than the normal regulatory requirements. The extent of a BZ represents an epidemiological assessment of the possibility of CWD emergence in areas where there is not an immediate concern but, given the biological parameters of susceptible species (to include both natural movement and movement as a result of permit activities), there is not sufficient confidence to believe there is not an elevated concern. As explained in the discussion of proposed new § §65.81-65.84, the proposed rules would establish an initial CZ, HRZ, and BZ and would authorize the department’s executive director to establish additional CZs, HRZs, or BZs and modify existing zones.

          Proposed new §65.80(3) would define “Containment Zone” as a “department-defined geographic area in this state within which CWD has been detected or the department has determined, using the best available science and data, CWD detection is probable.” The extent of a CZ is determined by considering the best available science and data including the behavior and life history of the particular susceptible species, geography, travel corridors, population parameters, and CWD testing history in that area. For example, as noted previously, in February 2012, CWD was detected in New Mexico, just across the Texas-New Mexico border. Since CWD-infected mule deer were known to exist in the Hueco Mountains in New Mexico, there was more than strong scientific possibility that CWD-infected mule deer were present in Texas because the Hueco Mountains straddle the Texas-New Mexico border and desert mule deer can move as much as 25-30 linear miles. The department notes that any future CZ, HRZ, or BZ created in response to a “detected” CWD test result in Texas would be based on the best available science and data correlated to the particular susceptible species infected, which could be white-tailed deer, whose behavior and life history are different than mule deer.

         Proposed new §65.80(4) would define “eligible mortality” as “any lawfully possessed adult deer that has died.” As noted previously, an “adult deer” is defined as a deer older than 16 months of age. Under the provisions of proposed new § §65.82-65.83, the department would condition the acquisition, movement, transfer, or release of deer under a DBP by requiring the permittee to comply with certain disease testing requirements and upon the results. Because of the long incubation period of the CWD infectious agent, deer in a DBP facility must be monitored for an extended period of time to determine if CWD is present. For the same reason, there is a low probability that CWD will be detected in deer of less than 16 months in age, even though such deer could be infected. Therefore, the department’s disease testing requirements for DBP facilities require that only adult deer mortalities be tested.

         Proposed new §65.80(5) would define the term “High Risk Zone” as a “department-defined geographic area in this state surrounding or adjacent to a CZ, within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected.” As noted earlier in the discussion of proposed new §65.80(2), regarding the definition of “buffer zone” and  §65.80(3), regarding the definition of “containment zone,” the department has determined that the most efficacious response to either the detection of CWD or a heightened expectation of detection of CWD would be the creation of a three-tiered geographical area around the detection site or area of heightened expectation of discovery. The area immediately surrounding the detection site would be a “containment zone,” which would in turn be contiguous with a “high risk zone,” within which the department would restrict the movement and release of susceptible species held under permits administered by the department. In the same fashion as used in the determination of a CZ, the department would determine the extent of a HRZ by using the best science and data available correlated to the particular susceptible species.

         Proposed new §65.80(6) would define “susceptible species” as “any species of wildlife resource that is susceptible to CWD.” The definition is necessary to provide a convenient term for ease of reference, rather than repeating the list of susceptible species throughout the rules. As noted previously, known susceptible species include white-tailed deer, mule deer, elk, and others.

         Proposed new §65.81, concerning Containment Zones; Restrictions, would establish the physical boundaries of the initial CZ and articulate the specific restrictions on permit holders within a CZ. The proposed new section would create an initial CZ in portions of Culberson, El Paso, and Hudspeth counties in West Texas (where CWD has been discovered and additional CWD detection is probable). Additional CZs may be added elsewhere in the state if necessary, and existing CZs may be modified.

         Proposed new §65.81(2) sets forth the restrictions that apply within the CZ to holders of permits issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1.

         Proposed new §65.81(2)(A) would prohibit any person within a CZ from conducting any activity involving the movement of a susceptible species under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, or R-1 within a CZ. For instance, Triple T permits authorize the trapping of deer for transplantation elsewhere. In a CZ, where the probability of CWD is highest, allowing the trapping and movement of deer to other areas of the state could result in the further spread of CWD. Similarly, allowing the release of Triple T deer or rehabilitated deer or allowing the concentration of wild deer in close confinement as a result of DMP activities also carries elevated risks.

         Proposed new §65.81(2)(B) would stipulate that if the department receives an application for a DBP for a new facility that is to be located within an area designated as a CZ, the department will issue the permit but will not authorize the possession of deer within the facility so long as the CZ designation exists. Parks and Wildlife Code,  §43.352, requires the department to issue a DBP to an applicant who meets the statutory and regulatory requirements for permit issuance; however, the commission’s rulemaking authority under Parks and Wildlife Code,  §43.357(b) authorizes the promulgation of rules governing the possession of breeder deer. The department recognizes that the likelihood that a person will desire to locate a new DBP facility in an area where CWD has been confirmed is remote; however, the possibility must be addressed. CWD is transmitted not only by direct contact but also indirectly through environmental contamination. Thus, the area within a CZ must itself be treated as if it were a vehicle for transmission of CWD. It follows that if a deer breeder facility were to be built in a CZ, any deer introduced into the facility would become potential reservoirs for CWD, a situation that should be avoided.

         Proposed new §65.81(2)(C) would prohibit the recapture of breeder deer that escape from a DBP facility located within a CZ. Under current rule (31 TAC  §65.602) a DBP holder may recapture deer that have escaped from a DBP facility. However, within a CZ the possibility that an escaped deer could come into contact with CWD-infected deer or contaminated environmental media is probable. An escaped deer that is recaptured and returned to a DBP facility could transmit CWD to deer within the DBP facility, making the DBP facility a CWD reservoir; therefore, the department has determined that it is prudent to prohibit the recapture of escaped breeder deer with a CZ.

         Proposed new §65.82, concerning High Risk Zones; Restrictions, would establish the physical boundaries of the initial HRZ and articulate the specific requirements regarding activities of permit holders within an HRZ. Proposed new §65.82(1) would create an initial HRZ in portions of Culberson, Hudspeth, Jeff Davis, and Reeves counties. HRZs may be added or modified as necessary. The HRZ created by the proposed new section comprises an area that surrounds the CZ. The department, using the best available science and data, has determined that the presence of CWD could reasonably be expected within the HRZ.

         Proposed new §65.82(2) would set forth the restrictions that apply within the HRZ to holders of permits issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1. Following the recommendation of the CWD Task Force and in concurrence with the TAHC, proposed new §65.82(2)(A) would prohibit any activity involving movement of a susceptible species under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1 within a HRZ, except as provided in paragraph (B),which addresses DBPs specifically. The reasons for this restriction are as set forth in the discussion of proposed new §65.81(2)(A). Except for certain activities conducted pursuant to a DBP, described in  §65.82(2)(B), the restrictions in the HRZ are the same as those in the CZ regarding the permits issued pursuant to Chapter 43, Subchapter C, E, L, R, or R-1.

         With respect to DBP activities in the HRZ, proposed new §65.82(2)(B)(i) would prohibit any person from introducing, removing, authorizing the introduction or removal, or causing the introduction or removal of a live breeder deer into or from a facility permitted under Parks and Wildlife Code, Chapter 43, Subchapter L, that is located within a HRZ unless the facility has a record of test results of “not detected” for all eligible mortalities within the facility in the immediately preceding five-year period, the facility holds at least a Level C herd status with the TAHC, and the department has confirmed that the herd inventory maintained by the department is accurate. As noted earlier in the discussion of CZs, allowing deer held under a DBP at a facility within a HRZ to be moved outside of the HRZ creates a potential for spreading CWD. However, the department recognizes that a DBP facility that has tested 100% of eligible mortalities with results of “not detected,” has achieved a Level “C” status from TAHC, and for which the department is able to verify the physical presence of each animal recorded on the inventory is, from an epidemiological point of view, not a likely reservoir for CWD. TAHC designates Level C status for herds that have a minimum of four years of test results indicating the absence of CWD, which is less stringent than the standard established in proposed new §65.82(2)(B)(i), which requires five years of test results, but requires an inventory verification to be performed annually by an accredited veterinarian and stipulates that additions of animals from lower herd-certification statuses causes an equivalent lowering for the receiving herd. Therefore, the effect of the proposed new provisions is to ensure that for a deer to be moved from a DBP facility within a HRZ, the department will have sufficient confidence that no deer within the facility have been infected with CWD. Such facilities would therefore be authorized to conduct normal activities under the DBP except for transport of a deer to a location other than a permitted deer breeder facility, which essentially prohibits the liberation from a deer breeder facility to the wild within the HRZ. Proposed new §65.82(2)(C) would expressly prohibit the liberation of deer held under any permit into the wild within a HRZ, which is necessary to avoid creating additional disease reservoirs.

         Proposed new §65.82(D) would prohibit the recapture of breeder deer that escape from a DBP facility located within a HRZ. Under current rule (31 TAC  §65.602) a DBP holder may recapture deer that have escaped from a DBP facility. However, within an HRZ there is the possibility that an escaped deer could come into contact with CWD-infected cervids or contaminated environmental media, which could then be transmitted to deer within the DBP facility and possibly to other DBP facilities (as deer are transferred among deer breeders); therefore, the department has determined that it is prudent to prohibit the recapture of escaped breeder deer with a HRZ.

         Proposed new §65.83, concerning Buffer Zones (BZs) would establish the physical boundaries of BZs and articulate the specific requirements regarding activities of permit holders within the BZ. The proposed new section would create an initial BZ in the area of West Texas where an elevated but not immediate concern regarding the discovery of CWD exists. Specifically, the proposed initial BZ would include all of Jeff Davis, Crane, Ward, Loving, Winkler, Ector, Andrews, Gaines, Yoakum, Cochran, and Bailey counties and portions of Presidio, Brewster, Pecos, Reeves, Parmer, Midland, Upton, Martin, Dawson, Terry, Hockley, Lamb, and Castro counties. Additional BZs may be added elsewhere in the state if necessary, and existing BZs may be modified.

         Proposed new §65.83(2) would set forth the restrictions that apply within the BZ to holders of permits issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1. Following the recommendation of the CWD Task Force and in concurrence with the TAHC, proposed new §65.83(2)(A) would prohibit the introduction or removal of a live susceptible species from a deer breeder facility permitted under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, that is located in a BZ unless the facility is “movement qualified” under the provisions of  §65.604 of this title (relating to Disease Monitoring); CWD test results of “not detected” have been returned from an accredited test facility on at least 50% of all eligible mortalities that occurred within the facility on or after January 1, 2013; zero CWD test results of “detected” have been returned from an accredited test facility; and the department has confirmed that the herd inventory record maintained by the department is accurate.

         As noted earlier in the discussion of HRZs, allowing deer held under a DBP at a facility within an HRZ to be moved outside of the HRZ creates a potential for spreading CWD. A similar, though reduced, concern exists for deer held in a DBP facility in a BZ. However, the department recognizes that a DBP facility that is “movement qualified,” has tested 50% of eligible mortalities with results of “not detected” and no results of “detected,” and within which the department is able to verify the physical presence of each animal recorded on the inventory, is, from an epidemiological point of view, not a likely reservoir for CWD. The requirement set forth in proposed new paragraph (2)(A)(ii) that establishes a date certain (January 1, 2013) for test histories, is necessary to avoid the inadvertent creation of a differential standard for disease testing.

         Proposed new §65.83(2)(B) would authorize the trapping of susceptible species within a BZ, provided a minimum of 30 test results of “not detected” and no “detected” results have been returned from an accredited test facility for adult deer of the species to be trapped obtained from the trap site. Under current rules governing Triple T (31 TAC  §65.102), a sample size equivalent to 10% of the number of deer to be transported (which may not be less than 10 nor more than 40 animals) must be tested for CWD with results of " not detected” in order to trap and move deer. Because the BZ is an area in which the department believes there is an elevated possibility of CWD discovery but CWD testing is not as robust, the department recommended that the sample size should be three times greater than the minimum sample currently required by current rule. The CWD Task Force also advised that current CWD testing requirements are inadequate to provide enough confidence that CWD does not exist in a population where deer may be trapped in the BZ; therefore, the proposal increases the minimum sample size within the BZ.

         Proposed new §65.83(2)(C) would clarify that the department would regulate activities involving susceptible species under permits issued under Parks and Wildlife Code, Chapter 43, Subchapter C (scientific collection, educational display, zoological, rehabilitation) by stipulating disease-control parameters as a condition of the permit.

         Proposed new §65.84, concerning Powers and Duties of the Executive Director, would set forth the obligations and limitations of the executive director with respect to the subchapter. Proposed new §65.84(a) would authorize the executive director to designate any geographic area of this state meeting the definition of a CZ, HRZ, or BZ as a CZ, HRZ, or BZ. The proposed new provision is intended to provide the department with a method of responding quickly to scientific information indicating that CWD is present, expected to be found, or there is an elevated possibility of detection. Being able to immediately impose movement and release restrictions is critical to preventing the spread of CWD. Proposed new §65.84(b) would require the executive director to notify the presiding officer of the commission prior to taking any action under the provisions of proposed new subsection (a). Proposed new subsection (c) would set forth public notice provisions, which is necessary because of the importance of letting landowners, hunters, permit holders, and other interested or affected persons know about department actions that might affect them. Proposed new subsection (d) would establish that designations of CZs, HRZs, and BZs are effective immediately and applicable to all permits issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1. In order to provide the greatest possible protection to native wildlife, it is imperative that the department be able to act immediately to isolate CWD and prevent it from being spread by any department-permitted activity. Proposed new subsection (e) would require the department to initiate rulemaking to adopt all CZs, HRZs, and BZs by rule as soon as practicable. Although the department believes that being able to make CZs, HRZs, and BZs immediately effective is crucial to being able to contain CWD, it also believes that there should be an additional rulemaking process following the provisions of the Administrative Procedure Act to add CZs, HRZs, and BZs to the department’s codified rules.

         Proposed new §65.85, concerning Mandatory Check Stations, would set forth requirements for the presentation of susceptible species harvested by hunters within a CZ, HRZ, or BZ to the department for CWD testing. Following the recommendation of the CWD Task Force and with the concurrence of the TAHC, the department has determined that a key component of the CWD management and response strategy is a maximized surveillance effort in areas of the state where CWD has been confirmed, is suspected to exist, or there is an elevated likelihood that it could be found. Therefore, in addition to the testing regime proposed for persons in possession of susceptible species under department permits and sampling efforts undertaken by the department and other entities, the department proposes to establish check stations for the purpose of testing hunter-harvested susceptible species. Although under current rule (31 TAC  §65.33), the department may establish mandatory check stations, the inclusion of specific check station requirements in this subchapter is prudent in order to have all regulations regarding CWD detection and management in one place for ease of reference and to reduce confusion for purposes of compliance and enforcement. In addition, certain additional requirements relating the check stations are necessary to address matters specific to CWD. Within a CZ, HRZ, or BZ where check stations have been established, the proposed new rule would require the intact and unfrozen head of any susceptible species to be presented to a designated check station within 24 hours of take by the person or representative of the person who killed the susceptible species. The proposed rule would also provide that the department will issue documentation for each specimen presented at the check station and that the documentation must remain with the specimen until the specimen reaches the possessor’s final destination.

         Proposed new §65.86, concerning Preemption, would make it clear that to the extent that a provision of the proposed new subchapter conflicts with a provision of another subchapter of in Chapter 65, the provisions of subchapter B would control. The proposed new section is necessary to eliminate potential regulatory confusion.

         Proposed new 65.87, concerning Exception, would allow the waiver of any provision of the proposed new subchapter as necessary for the holder of a scientific research permit issued under Parks and Wildlife Code, Chapter 43, Subchapter C when the proposed research is determined to be of use in advancing an understanding of CWD with respect to susceptible species. The department considers that CWD is of interest to the scientific community, and that scientific research proposals concerning the investigation of CWD could be received. Therefore, the proposed new rules accommodate that possibility.

         Proposed new §65.88, concerning Penalties, would state the statutory penalties for violations of the proposed new rules for ease of reference.

2. Fiscal Note.

         Mr. Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of the permit programs affected will administer and enforce the rules as part of their current job duties.

3. Public Benefit/Cost Note.

         Mr. Lockwood also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of free-ranging, native deer from communicable diseases, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas. Additionally, the protection of free-ranging deer herds will have the simultaneous collateral benefit of protecting captive herds, and maintaining the economic viability of deer breeding operations.

         (B) 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. As required by Government Code,  §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services. As explained in more detail below, the department has determined that except for DBPs, the proposed rules will not have an adverse impact on small or micro-businesses.

         The department recognizes that Triple T and DMP holders in many cases obtain such permits as part of an effort to enhance the quality of a deer herd located on a specific property. In turn, such landowners may seek to obtain a higher fee for hunting opportunities based on the perception of a higher quality hunting experience. However, adverse economic impacts to the pricing structure of hunting opportunity as a result of the proposed new rules, if they occur, are indirect at best. The rule does not directly impact a landowner’s ability to charge a fee for a hunting opportunity on the landowner’s property. In addition, any deer that are introduced to a property as a result of a Triple T or DMP continue to be a public resource.

Scientific Educational, Zoological, and Rehabilitation Permits

         There will be no adverse economic impacts to persons holding permits issued under Parks and Wildlife Code, Chapter 43, Subchapter C (permits for rehabilitation, scientific collection, educational display, and zoological display). Current rules (31 TAC  §69.44(b) and  §69.302) prohibit the sale of protected wildlife held under those permits. Since persons possessing these permits undertake permitted activities on a non-profit basis, any person or entity involved in permitted activities would not be engaged in such activities for the purpose of making a profit and would thus not be considered a small or micro-business as defined in Government Code,  §2006.001.

Triple T Permits

         There will be no adverse economic effects to holders of Triple T permits. Triple T permits authorize only the trapping, transporting, and transplantation of a public resource. As a result, wildlife trapped under a Triple T may not be sold, bartered, or exchanged for anything of value. (Parks and Wildlife Code,  §1.011; 31 TAC  §69.117(a)(6)). Therefore, persons engaged in such activities would not suffer a direct adverse economic impact from the proposed rules. Current department rules governing Triple T permit issuance provide for the denial of a permit if the department determines that release of a game animal or game bird may detrimentally affect existing populations or systems (31 TAC  §65.103(c)(3)). The rules as proposed would further clarify this authority by prohibiting the trapping of susceptible species from within a CZ or HRZ since trapping and moving susceptible species from within a CZ or HRZ would have the potential to detrimentally affect other populations of deer by exposure to animals possibly infected with CWD. The proposed new rules would allow the trapping of deer from a BZ if disease-testing requirements have been met.

Deer Management Permits

         There will be no adverse economic impact to holders of DMPs. As noted previously, the department has not promulgated rules governing DMPs for mule deer; therefore, the only DMP activities affected by the proposed new rules would be DMPs issued for white-tailed deer. The purpose of the DMP is to allow landowners and land managers to conduct selective breeding of wild deer trapped under a department-approved deer management plan. A DMP authorizes the permittee to temporarily detain wild white-tailed deer for breeding purposes, including deer introduced to the DMP pen via Triple T permit and/or DBP. (A discussion of the impact of the proposed rules on DMP and Triple T permits is contained elsewhere in this preamble.) Except for DBP deer, which may normally be returned to a DBP facility, deer held pursuant to a DMP must be released into the wild following breeding activities in a DMP pen and may not be sold (Parks and Wildlife Code,  § §1.011, 43.621; 31 TAC  §65.133(g)). As a result, persons engaged in such activities would not suffer a direct small or micro-business adverse economic effect from the proposed rules.

Deer Breeder Permits

         Parks and Wildlife Code, §43.357(a), authorizes a person to whom a DBP has been issued to “engage in the business of breeding breeder deer in the immediate locality for which the permit was issued” and to “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation.” As a result, unlike the other permits impacted by the proposed rules, DBPs authorize persons to engage in business activities.

         Government Code,  §2006.001(1), defines a small or micro-business as a legal entity “formed for the purpose of making a profit” and “independently owned and operated.” A micro-business is a business with 20 or fewer employees. A small business is defined as a business with fewer than 100 employees, or less than $6 million in annual gross receipts. Although the department does not require holders of DBPs to file financial information with the department, the department believes that many persons holding DBPs would qualify as a small or micro-business. Since the rules as proposed would impact the ability of a DBP to engage in certain activities undertaken to generate a profit, the proposed rules may have an adverse impact on persons with DBPs.

         The department has determined that if adopted, the proposed new rules would result in immediate adverse economic impacts to one permittee, who holds a DBP for a facility within the proposed HRZ. No other small or microbusinesses or persons required to comply would incur any immediate direct adverse economic impacts; however, if additional CZs, HRZs, or BZs are created, additional small and microbusinesses could be affected. Therefore, this analysis will address the potential fiscal impacts to all deer breeders in the state should additional CZs, HRZs, or BZs be necessary.

         The proposed new rules would prohibit the introduction to or removal of deer from DBP facilities within a CZ, which would result in an adverse economic impact to DBP holders with facilities located within a CZ and who liberate deer for commercial hunting or sell deer to other DBP holders. The extent of such adverse economic impact would consist of loss of revenue as a result of being unable to introduce or remove deer from the DBP facility and thus being unable to deliver or accept deer that have been bought or sold. The dollar value of the adverse economic impact is dependent on the volume of deer produced or acquired by any given permittee, which can vary from a few deer to hundreds of deer. The department notes that the designation of a CZ is not necessarily permanent and that the department can change the size and shape of a CZ depending on assessments of prevalence and extent of CWD within a CZ. Therefore, adverse economic impacts to DBP as a result of CZ designations could be temporary.

         The proposed new rules would allow DBP activities to continue in a HRZ only if certain disease-testing requirements have been met. Department records indicate that there are currently 1,252 persons who hold a DBP in the state, and 36 of them have both TAHC Level C herd status or higher and a five-year history of CWD test results of “not detected” and no CWD results of “detected.” These 36 permittees, assuming they are able to accurately reconcile their herd with the inventory record on file with the department and remain in compliance, would not be affected by the proposed new rules if an HRZ were to be declared around their facilities, because they meet the movement requirements of the proposed new rules.

         The proposed new rules could, however, result in adverse economic impacts for DBP holders in HRZs who do not have a five-year history of “not detected” results, are not Class C status or higher from TAHC, or do not have an accurate herd inventory. Likewise, the proposed new rules could result in adverse economic impacts for DBP holders in BZs who do not have a history of testing 50% of all eligible mortalities from January 1, 2013, do not have all test results of “not detected”, are not movement qualified under department rules, or do not have an accurate herd inventory. There are currently 1,216 DBP holders who do not meet the movement requirements of the proposed new rules and could be directly impacted by proposed new rules, depending on the location of any future HRZs or BZs. However, it should be noted that this number assumes that the entire state would be designated as a HRZ, or BZ, which is not likely. In addition, the variety of business models utilized by permittees makes meaningful estimates of potential adverse economic impacts difficult. Although a DBP gives the DBP holder the privilege to buy and sell breeder deer and many DBP holders participate in a market for breeder deer, other DBP holders are interested only in breeding and liberating deer on their own property for hunting opportunity. Once a breeder deer is liberated, it cannot be returned to a DBP facility and assumes the same legal status as all other “wild” deer. Thus, if the DBP holder is engaged primarily in buying and selling deer, the potential adverse economic impact is greater than that for a DBP holder who engages in DBP activities primarily for purposes of release onto that person’s property. The department does not require DBP holders to report the buying or selling prices of deer. However, publicly available information indicates that sale prices, especially for buck deer, may be significant. The sale price for a single deer may range from hundreds of dollars to many thousands of dollars.

         Although the rules as proposed would cause an adverse economic impact to DBP holders in HRZs or BZs who do not meet the disease-testing and TAHC herd level requirements to continue otherwise permitted activities, the rules do provide for DBP holders to continue permitted activities in a HRZ or BZ if they have met the disease-testing and herd-status requirements of the rules. As a result, DBP holders in compliance with the proposed new rules may incur costs related to testing and monitoring.

         Under the proposed rules, for a DBP holder to move deer from a deer breeder facility within the BZ, the facility must be “movement qualified,” among other things. Under current rules (31 TAC Chapter 65, Subchapter T), a DBP facility is not considered “movement qualified” unless the facility is certified by TAHC as having a CWD Monitored Herd Status of Level A or higher; less than five eligible breeder deer mortalities have occurred within the facility as of May 23, 2006; or CWD test results of “not detected” have been returned from an accredited test facility on a minimum of 20% of all eligible breeder deer mortalities occurring within the facility as of May 23, 2006. Under TAHC rules (4 TAC  §40.4), Level A herd status is achieved with one full year of participation without CWD being confirmed.

         Under the proposed rules, certain activities under a DBP in an HRZ require, among other things, the achievement of Level “C” status as defined in TAHC rules. Under current TAHC rules at 4 TAC  §40.3, Level C status is achieved with “four to five” years of herd monitoring with no confirmation of CWD. In addition, the herd must be inspected annually by an accredited veterinarian. If animals from a source with a lower or no herd status are added, the herd status reverts to the level of the source herd.

         Therefore, for any given DBP within a HRZ or BZ that is currently qualified to move or release deer, compliance with the proposed new rules could be achieved in five years or less and at the additional direct economic cost of CWD testing of all eligible mortalities and the cost of the annual inventory by an accredited veterinarian.

         The department cannot predict the number of mortalities that will occur in any given facility in a year; however, mortality data annually reported to the department for the last five years indicates that the average number of eligible mortalities per DBP facility per year is 4.256. The cost of a CWD test administered by the Texas Veterinary Medicine Diagnostic Lab (TVMDL) on a sample collected and submitted by the DBP holder is a minimum of $42, consisting of a $36 test fee per prepared sample plus a $6 submission fee (which may cover multiple samples submitted at the same time). The CWD test fee for a sample collected and prepared by the TVMDL is $82, consisting of $36 per unprepared sample, a $6 submission fee, a $20 fee to remove the sample from the head, and a $20 head-disposal fee. The cost of an annual inventory by an accredited veterinarian is estimated by TAHC to be approximately $250.

         Using the eligible mortality data (rounded up from 4.256 to five eligible mortalities per facility per year), the department estimates that the direct economic impact of testing in order become “movement qualified” under the proposed new rules would be between $460 and $660 per year for each permittee who desires to meet to criteria for moving deer under the proposed new rules. If the sample is collected, fixed, and submitted by a private veterinarian, the cost could be higher.

         For a DBP holder in a HRZ, the difference between the current rules and the proposed new rules would be the requirement to test all eligible mortalities (rather than 20%, as currently required) for whatever additional time is required in order to achieve the TAHC Level C status, and the cost of an annual inventory conducted by an accredited veterinarian (which is required by TAHC regulations (4 TAC  §40.3)). For a DBP holder in a BZ, the difference between the current rules and proposed new rules would be the requirement to test 50% of all eligible mortalities (rather than 20%, as currently required). Such costs would be necessary only if a DBP holder wishes to engage in activities involving movement of deer described in the proposed rule.

         The department notes that because CWD has been proven to be transmissible by direct contact (including through fences) and via environmental contamination, there may be adverse economic impacts unrelated to the proposed new rules in the event that CWD is confirmed near a DBP facility due to the possible reluctance of potential customers to purchase deer from a facility in an area where CWD has been confirmed. Additionally, in the absence of the proposed new rules, if CWD is detected within a DBP facility, there could be lost revenue to the permittee since potential purchasers who are aware of the potential of CWD would likely refrain from purchasing deer from such a facility. Therefore, the proposed new rules, by providing a mechanism to minimize the spread of CWD, could also protect the economic interests of the regulated community.

         The department considered several alternatives to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply. The department considered proposing no rules. The department recognizes that many of the restrictions imposed by the rules could be achieved under current rules and statutes. This alternative was rejected because a regulation that clearly sets out the restrictions on the regulated community is more likely to achieve the desired result of stemming the spread of CWD. The department concluded that the need to protect the wildlife resources that sustain the state’s multi-billion-dollar hunting industry outweighs the temporary adverse impacts to small and micro-businesses and persons required to comply.

         The department also considered, in lieu of a regulatory response, the alternative of attempting to eliminate CWD in an area by conducting a depopulation event, that is, killing every deer possible inside a certain perimeter in the hopes of eliminating the reservoir for the disease. This alternative was rejected at this time because to be effective, the geographical extent of the disease must be known. Furthermore, removing every animal that exists within an affected area does not remove prions (the infectious agent believed to cause CWD), which can be shed by an infected animal and remain in the environment and which in turn can infect susceptible animals introduced to or inhabiting the environment. The department notes that depopulation is believed to have been successful in rare instances; however, in most circumstances, removal of all animals, even when the distribution of the disease is known, has proven to be difficult or impossible to achieve in free-ranging populations.

         The department also considered imposing less stringent testing requirements in order to allow DBP holders to continue moving and/or releasing breeder deer. This alternative was rejected because the testing requirements in the proposed new rules reflect mathematical models aimed at producing high confidence that CWD is or is not present. Less stringent testing requirements would reduce confidence and therefore frustrate the ability of the department to respond in the event that CWD actually is present. The department also believes that rigorous testing assures the hunting public and the regulated community that wildlife resources are safe and reliable.

         Another alternative considered was a CZ, HRZ, and BZ that are more narrowly drawn. This alternative was rejected because the size of a CZ, HRZ, or BZ is biologically determined by using the best science and data available correlated to the susceptible species. If the department chose to implement a smaller CZ, HRZ, or BZ area, it would increase the risk of spreading CWD and introduce regulatory confusion.

         (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act,  §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.state.tx.us); or via the department’s website at www.tpwd.state.tx.us.

5. Statutory Authority.

         The new rules are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession 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 as noted previously, the department has not yet established the 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 proposed new rules affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1 and Chapter 61.

6. Text.

          §65.80. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words in this subchapter shall have the meanings assigned by Parks and Wildlife Code.

                 (1) Adult deer—A white-tailed deer or mule deer that is 16 months of age or older.

                 (2) Buffer Zone (BZ)—A department-defined geographic area in this state adjacent to or surrounding a HRZ, within which the department, using the best available science and data, has determined that an elevated probability of discovering CWD exists.

                 (3) Containment Zone (CZ) — A department-defined geographic area in this state within which CWD has been detected or the department has determined, using the best available science and data, CWD detection is probable.

                 (4) Eligible mortality — Any lawfully possessed adult deer that has died.

                 (5) High-Risk Zone (HRZ) — A department-defined geographic area in this state adjacent to or surrounding a CZ, within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected.

                 (6) Susceptible species — Any species of wildlife resource that is susceptible to CWD.

          §65.81. Containment Zones; Restrictions. The areas described in paragraph (1) of this section are CZs.

                 (1) Containment Zones.

                         (A) Containment Zone 1: That portion of the state within the boundaries of a line beginning in Culberson County where U.S. Highway (U.S.) 62-180 enters from the State of New Mexico; thence southwest along U.S. 62-180 to the intersection with State Highway (S.H.) 54; thence south along S.H. 54 to Interstate Highway (I.H.) 10; thence west along I.H. 10 to S.H. 20; thence northwest along to S.H. 20 to Farm-to Market Road (F.M.) 1088; thence south along F.M. 1088 to the Rio Grande; thence northwest along the Rio Grande to the Texas-New Mexico border.

                         (B) Existing CZs may be modified and additional CZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

                 (2) Restrictions.

                         (A) Except as provided in  §65.87 of this title (relating to Exception), no person within a CZ shall conduct, authorize or cause any activity involving the movement of a susceptible species under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1. Such prohibited activity, includes, but is not limited to transportation, introduction, removal, authorizing the transportation, introduction or removal of, or causing the transportation, introduction or removal of a live susceptible species into, out of, or within a CZ.

                         (B) If the department receives an application for a deer breeder permit for a new facility that is to be located within an area designated as a CZ, the department will issue the permit but will not authorize the possession of susceptible species within the facility so long as the CZ designation exists.

                         (C) Deer that escape from deer breeder facility within a CZ may not be recaptured.

          §65.82. High Risk Zones; Restrictions. The areas described in paragraph (1) of this section are HRZs.

                 (1) High Risk Zones.

                         (A) High-Risk Zone 1: That portion of the state lying within a line beginning in Reeves County where the Pecos River enters from New Mexico; thence southeast along the Pecos River to Interstate Highway (I.H.) 20; thence west along I.H. 20 to I.H. 10; thence west along I.H. 10 to the Culberson County line; thence southwest along the Culberson County line to the Rio Grande; thence northwest along the Rio Grande to the El Paso County line; thence north along the El Paso County line to the Texas-New Mexico border.

                         (B) Existing HRZs may be modified and additional HRZs may be designated as necessary by the executive director as provided in  §65.84 of this title (relating to Powers and Duties of the Executive Director).

                 (2) Restrictions.

                         (A) Except as provided in §65.87 of this title (relating to Exception) and paragraph (B) of this subsection, no person within a HRZ may conduct, authorize or cause any activity involving the movement of a susceptible species , into, out of, or within an HRZ under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1. Such prohibited activity, includes, but is not limited to transportation, introduction, removal, authorizing the transportation, introduction or removal, or causing the transportation, introduction or removal of a live susceptible species into, out of, or within an HRZ.

                         (B) No person shall:

                                  (i) introduce, remove, authorize the introduction or removal, or cause the introduction or removal of a live susceptible species into or from a deer breeder facility permitted under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, that is located in a HRZ unless:

                                          (I) CWD test results of “not detected” have been returned from an accredited test facility on all eligible mortalities that occurred within the facility within the preceding five-year period;

                                          (II) the facility has obtained Level "C" status as defined by 4 TAC  §40.3 (relating to Herd Status Plans for Cervidae); and

                                          (III) the department has confirmed that the herd inventory record maintained by the department is accurate; or

                                  (ii) transport, authorize the transport, or cause the transport of a susceptible species into a HRZ unless:

                                          (I) the requirements of (i)(I)-(III) of this paragraph (B) have been met; and

                                          (II) the susceptible species are transported to a deer breeder facility permitted under Parks and Wildlife Code, Chapter 43, Subchapter L.

                         (C) No person shall liberate a susceptible species within an HRZ.

                         (D) Deer that escape from deer breeder facility within a HRZ may not be recaptured.

          §65.83. Buffer Zone (BZ)—The areas described in paragraph (1) of this section are BZs.

                 (1) Buffer Zones.

                         (A) Buffer Zone 1: That portion of the state not within a CZ or HRZ and lying west of a line beginning where U.S. Highway (U.S.) 67 meets the Rio Grande in Presidio County; thence northeast along U.S. 67 to State Highway (S.H.) 349 in Upton County; thence north along S.H. 349 to S.H. 137 in Dawson County; thence northwest along S.H. 137 to U.S. 385 in Terry County; thence north along U.S. 385 to Farm to Market Road (F.M.) 145 in Castro County; thence west along F.M. 145 to U.S. 84 in Parmer County; thence northwest along U.S. 84 to the Texas-New Mexico border.

                         (B) Existing BZs may be modified and additional BZs may be designated as necessary by the executive director as provided in  §65.84 of this title (relating to Powers and Duties of the Executive Director).

                 (2) Restrictions.

                         (A) No person shall introduce, remove, authorize the introduction or removal, or cause the introduction or removal of a live susceptible species into or from a deer breeder facility permitted under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, that is located in a BZ unless:

                                  (i) the facility is “movement qualified” under the provisions of  §65.604 of this title (relating to Disease Monitoring);

                                  (ii) CWD test results of “not detected” have been returned from an accredited test facility on at least 50% of all eligible mortalities that occurred within the facility on or after January 1, 2013;

                                  (iii) zero CWD test results of “detected” have been returned from an accredited test facility for any susceptible species submitted for testing; and

                                  (iv) the department has confirmed that the herd inventory record maintained by the department is accurate.

                         (B) The department will not authorize the trapping of susceptible species in a BZ unless:

                                  (i) a minimum of 30 test results of “not detected” have been returned from an accredited test facility for adult deer of the species to be trapped, obtained from the trap site; and

                                  (ii) zero CWD test results of “detected” have been returned from an accredited test facility for adult deer of any susceptible species.

                         (C) The department will regulate activities involving susceptible species under permits issued under Parks and Wildlife Code, Chapter 43, Subchapter C, under the conditions of the permit.

          §65.84. Powers and Duties of the Executive Director.

                 (a) The executive director may designate any geographic area in this state a CZ , HRZ, or BZ if the area meets the applicable definition set forth in  §65.80 of this title (relating to Definitions).

                 (b) The executive director shall notify the presiding officer of the commission prior to taking any action under the provisions of subsection (a) of this section.

                 (c) The executive director shall ensure that the department makes a reasonable effort to provide public notice in the event that a CZ, HRZ, or BZ is declared.

                 (d) The designation of a CZ, HRZ, or BZ under the provisions of subsection (a) of this section is:

                         (1) effective immediately; and

                         (2) applicable to all permits issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1.

                 (e) The department shall initiate rulemaking to adopt any CZ, HRZ, or BZ designated by the executive director as soon as practicable.

          §65.85. Mandatory Check Stations.

                 (a) The department may establish mandatory check stations in any CZ, HRZ, or BZ for the purpose of collecting biologic information on susceptible species taken within a CZ, HRZ, or BZ.

                 (b) In a CZ, HRZ, or BZ where mandatory check stations have been established, the intact, unfrozen head of any susceptible species that has been killed must be presented to a designated check station within 24 hours of take by the person or representative of the person who killed the susceptible species, unless otherwise authorized in writing by department personnel.

                 (c) The department will issue documentation for each specimen of a susceptible species that is presented at a check station. The department-issued documentation must remain with the specimen until it reaches the possessor’s final destination.

                 (d) A person who fails or refuses to comply with this section commits an offense.

          §65.86. Preemption. To the extent a provision of this subchapter conflicts with a provision of another subchapter of this chapter, this subchapter controls.

          §65.87. Exception. The department may waive any provision of this subchapter as necessary for the holder of a scientific research permit when the proposed research is determined to be of use in advancing the understanding the etiology of CWD in susceptible species.

          §65.88. Penalties. A person who violates any provision of this subchapter commits an offense and is subject to the penalties prescribed by Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R or R-1, and Chapter 61, as applicable.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on



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