TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 65. WILDLIFE

SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

In a duly noticed meeting on May 25, 2017, the Texas Parks and Wildlife Commission adopted amendments to §§65.81, 65.82, 65.85, 65.88, and 65.94, concerning Disease Detection and Response. Sections 65.81, 65.82, and 65.94 are adopted with changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2135). Sections 65.85 and 65.88 are adopted without change and will not be republished.

The change to §65.81, concerning Containment Zones; Restrictions, adds a map to the provisions of paragraph (1)(C) to provide a visual reference to the boundaries of Containment Zone (CZ) 3 in addition to the proposed boundary description consisting of latitude/longitude coordinate pairs, which is intended to provide additional guidance to the regulated community. The change also clarifies the provisions of paragraph (2)(F) by replacing the phrase "share the same ownership" with the phrase "title in the county deed record reflects that the surface of the release site and of the breeding facility is held by the same owner or owners," which is necessary to be more technically precise. Additionally, the change alters paragraph (2)(H) to clarify that the subparagraph's requirement for Movement Qualified designation under Division 2 of the Subchapter B is in addition to and does not preclude the need to comply with the provisions of Division 1 of Subchapter B, and identifies the specific penalty provisions of the Parks and Wildlife Code and the Texas Administrative Code to which a violation of subparagraph (H) is subject, which the department intends for purposes of ease of reference.

The change to §65.82, concerning Surveillance Zones; Restrictions, clarifies paragraph (2)(B) by adding a reference to the rules contained in Chapter 65, Subchapter B, Division 2, which contains various regulations affecting the movement of deer under deer breeder permits. The purpose of the change is to ensure that the regulated community is aware that other rules in Chapter 65 affect the movement of deer under a deer breeder permit.

The change to §65.94, concerning Breeding Facility Minimum Movement Qualification, alters subsection (c) to extend the deadline for submission of test samples and re-words provisions regarding the conditions under which the department will allow ante-mortem test samples to be submitted in the event that a testing laboratory loses chronic wasting disease (CWD) samples needed to maintain TC 1 facility status. As proposed, the provision stipulated that if by March 31 of any year a laboratory lost tissue samples necessary for a TC 1 facility to maintain TC 1 facility status, the facility could submit ante-mortem replacement tissue samples by May 15 and, provided sufficient "not detected" results were obtained, retain TC 1 facility status. The department received a question from the regulated community regarding a scenario in which initial samples are submitted to a laboratory on March 31 but the notification of lost samples isn't received until after the May 15 deadline for the submission of substitute samples. The change re-words the provision to account for that scenario, stipulating that if a breeding facility that has obtained TC 1 status is unable to satisfy the criteria of this subchapter necessary to maintain TC 1 status by March 31 of any year solely because tissue samples have been documented by an accredited testing facility as having been received and lost, the breeding facility status will be reduced to TC 2 status unless ante-mortem substitution samples necessary to maintain TC 1 status are submitted to an approved diagnostic laboratory by the latter of the following: May 15 immediately following notification to the breeder by the accredited testing facility that the tissue samples have been lost or 30 days after the date on which the breeder is notified by the accredited testing facility that the tissue samples have been lost, provided, of course, that the required number of "not detected" test results are obtained from the ante-mortem substitute samples submitted to satisfy the requirements for TC 1 facility status.

The amendments are intended to replace emergency rules affecting Subchapter B, Division 1 adopted on January 26, 2017, (42 TexReg 531) and to alter the "comprehensive CWD management rules" (Subchapter B, Division 2) adopted in 2016 (41 TexReg 5726).

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. 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 to certain species of cervids, and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease in free-ranging populations correlates with deer population declines and human dimensions research indicates that hunters will avoid areas of high CWD prevalence. 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. In 2005, the department closed the Texas border to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and record keeping. (The closing of the Texas border to entry of out-of-state captive white-tailed and mule deer was updated, effective in January 2010, to address other disease threats to white-tailed and mule deer (35 TexReg 252)).

On July 10, 2012, the department confirmed that two mule deer sampled in the Texas portion of the Hueco Mountains in far west Texas tested positive for CWD. In response, the department adopted rules (Subchapter B, Division 1) in 2013 (37 TexReg 10231) to implement a CWD containment strategy in that area. Those rules established a system of zones within which the movement of live deer under department permits (Deer Breeder Permit (DBP), Permit to Trap, Transport, and Transplant Game Animals and Game Birds (popularly called the "Triple T" permit), and Deer Management Permit (DMP)) is restricted, and required deer harvested in specific geographical areas to be presented at check stations to be tested for CWD. In 2016, those rules were modified (41 TexReg 7501) in response to additional CWD discoveries in the Texas Panhandle and Medina County, creating additional Surveillance Zones (SZs) and an additional Containment Zone (CZ) in West Texas.

In June of 2015, the department received confirmation that a two-year-old white-tailed deer held in a deer breeding facility in Medina County ("index facility") had tested positive for CWD, which was followed by positive test results for white-tailed deer in four additional deer breeding facilities. Subsequent testing confirmed the presence of CWD in additional white-tailed deer at the index facility. The source of the CWD at the index facility has not been determined. In response, the department first adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, then developed interim rules (41 TexReg 815) intended to function through the 2015-2016 hunting season until permanent rules could be developed. Working closely with the Texas Animal Health Commission (TAHC), the regulated community, and key stakeholders, and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department developed the "comprehensive CWD management rules" (Subchapter B, Division 2), adopted in 2016 (41 TexReg 5726). The comprehensive CWD management rules address the movement and consequences of movement of live deer under various department-issued permits (DBP, Triple T, and DMPs). Concurrently, the department engaged in rulemaking affecting Subchapter B, Division 1 (41 TexReg 7501) to create additional SZs and a CZ, including SZ 3, which affected a portion of Bandera, Medina, and Uvalde counties. A CZ was not established in this area because the department was approached by concerned county officials and landowners in Medina County who committed to organizing a volunteer hunter and landowner effort to provide the department with a sufficient number of valid "not detected" CWD test results, which would allow the department to make an epidemiologically sound determination about the prevalence (if any) of CWD within the SZ. In choosing to forgo the creation of a CZ, the department considered that CWD had not been encountered in free-ranging deer in that area, that deer breeding facilities by their nature are designed and built to prevent contact between captive deer and free-ranging deer (which is also prohibited by rule), and that breeding facilities where CWD was discovered were issued a quarantine or hold order by TAHC, which restrict deer movement and require CWD testing at a level equal to or greater than that required in a CZ. The amendment to §65.88, concerning Deer Carcass Movement Restrictions, also exempted SZ 3 from the applicability of the provisions of that section that imposed mandatory check station and carcass movement restrictions.

On January 24, 2017, the department received confirmation that a 1.5-year-old male white-tailed deer harvested by a hunter within SZ 3 in Medina County during the 2017-2018 hunting season had tested positive for CWD. The deer was free-ranging and was harvested on a low-fenced property. There is currently no evidence that the deer was a deer liberated from a deer breeding facility, and the harvest site has not been a release site for breeder deer or deer under any other department-administered permit programs. Prior to this discovery, CWD discoveries in this part of the state occurred only in deer breeding facilities and their associated release sites.

As a result of the detection of CWD in a free-ranging white-tailed deer, consistent with epidemiological science and in consultation with TAHC, the department determined that prompt action to contain CWD in this area was necessary in order to protect species managed by the department and thus adopted emergency rules to create a CZ in a portion of Medina, Bandera, and Uvalde counties. The amendments adopted in this notice replace the emergency rules.

The amendment to §65.81, concerning Containment Zones; Restrictions, creates a CZ in a portion of Bandera, Medina, and Uvalde counties. A CZ is a specific location in which CWD has been detected or the department has determined, using the best available science and data, that CWD detection is probable. With respect to the CZ established by this rulemaking, the department in consultation with TAHC has determined that for any given deer breeding facility or release site where breeder deer have been released and CWD has been discovered, the highest probability for detecting CWD that might have spread from that property is within approximately two miles of the property boundary. For a location at which CWD has been detected in a free-ranging white-tailed deer, the highest probability of detection would be within approximately a five-mile radius from the approximate location where the deer was harvested.

For purposes of legal precision, the amendment describes the perimeter of the CZ in Bandera, Medina, and Uvalde counties by latitude-longitude coordinate pairs. As discussed earlier in this preamble, §65.81 is adopted with a change that includes a map for additional guidance. The department notes that although the CZ designation imposes mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer, it is not necessary for hunters to be aware of or concerned with CZ boundaries, since the CZ is wholly within an SZ where mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer also apply. SZ 3 is delineated by easily recognizable and well-known roadway and river boundaries. The CZ designations affect only persons and properties within the CZ where deer are possessed pursuant to permits issued by the department; thus, although the exact boundary of CZ 3 is discernable to anyone using latitude-longitude coordinate pairs, the department is able to communicate directly with affected persons to make them aware of the rules' implementation. The department also notes that it will undertake an intensive outreach effort to inform the public.

The amendment to §65.81 also stipulates that if any portion of a deer breeding facility or release site is within a CZ, the entirety of the deer breeding facility or release site is considered to be in the CZ and subject to CZ restrictions. Because CWD is known to be spread by both physical and environmental vectors, it is necessary, from an epidemiological perspective, to ensure that the totality of any environment that could have been exposed to CWD be captured by the CZ designation.

The amendment to §65.81 differs from both the current rules and the emergency rules that it replaces by liberalizing restrictions on the movement of breeder deer within the CZ. Under both the current rules and the emergency rules, the movement of breeder deer within a CZ is prohibited, except for deer breeding facilities with TC 1 status, which are allowed to release breeder deer to adjoining acreage if that acreage is also owned by the permittee (under Subchapter B, Division 2, deer breeding facilities obtain deer movement privileges based on CWD testing performance, with TC 1 representing the highest relative confidence that CWD is not present and TC 3 the lowest). The amendment allows deer breeding facilities with TC 1 status located within a CZ to transfer or release breeder deer to any permitted or registered facility with Movement Qualified (MQ) status within the CZ (but not beyond the CZ). Deer breeding facilities with TC 2 status would be allowed to release breeder deer to adjoining acreage, provided that title in the county deed records reflects that the surface of the release site and of the breeding facility is held by the same owner or owners and every deer released has had a tonsil biopsy test for CWD with a result of "not detected" no more than 60 days prior to release.

The amendment to §65.81 also required harvest at registered release sites to be at a ratio of one deer per breeder deer released since the previous hunting season, and the owner of the release site maintains a harvest log and reports that harvest to the department. The department believes that deer movements resulting in an increased number of potential hosts for CWD should not be authorized. By requiring one deer to be harvested for every deer released, the proposed provision would allow the movement of deer believed to be at low relative risk for CWD while creating a zero-sum result in the number of potential disease hosts on the landscape. The department also believes that it is necessary that an assessment and reporting function be implemented by requiring a harvest log in order to allow the department to verify that persons who release breeder deer within a CZ are complying with the provisions of the proposed subparagraph.

The amendment to §65.82, concerning Surveillance Zones; Restrictions, alters the boundaries of both SZ 2 and SZ 3. The alteration to SZ 2 would slightly increase the size of the SZ by extending its borders to include the cities of Dumas and Amarillo. The department has become aware that there are taxidermists and processing facilities in Dumas and Amarillo that are just outside the current SZ, which means that whole carcasses of deer harvested within the SZ legally cannot be taken to those locations without being noncompliant with the carcass movement restrictions. Including the cities of Dumas and Amarillo will increase the number of taxidermists and processors available to hunters. The alteration to SZ 3 would slightly extend a segment of the western boundary westward to the Sabinal River. As noted previously in the discussion of the amendment to §65.81, the department is creating a CZ in a portion of Bandera, Medina, and Uvalde counties, based on a distance of two miles from the boundaries of properties where CWD has been detected in deer breeding facilities and five miles surrounding locations where CWD has been detected in free-ranging deer. Consequently, the SZ surrounding the CZ must be extended, and the department has determined that extending it to the Sabinal River provides an easily recognizable boundary for purposes of enforcement and compliance. The amendment also clarifies that breeder deer from a deer breeding facility located outside a SZ may be released within a SZ.

The amendment to §65.85, concerning Mandatory Check Stations, increases the time period within which harvested deer must be presented at a mandatory check station for tissue sample collection for CWD testing, from 24 hours to 48 hours following harvest. In the Panhandle and far west Texas, hunters are sometimes a significant distance from the nearest check station, and because the typical hunting trip is multi-day and can result in the harvest of more than one deer, the department is persuaded that increasing the time period to 48 hours will provide convenience to hunters and land managers while posing little threat to sample viability. Rather than causing possible confusion by having a differential standard in different parts of the state, the department believes the 48-hour standard is best applied to all areas designated as a CZ or SZ. The amendment also eliminates current subsection (f), which exempted SZ 3 from carcass movement restrictions and mandatory check stations. When SZ 3 was created, the department was approached by local officials who requested that the mandatory check station and carcass movement restrictions not be implemented in SZ 3 while a voluntary effort to provide samples was attempted. The department agreed to the request, reasoning that CWD had been detected only in permitted deer breeding facilities and sites where breeder deer had been released, all of which were issued a TAHC quarantine or hold order that included surveillance requirements for all hunter-harvested deer. With the discovery of CWD in a free-ranging deer, however, the department finds that it is imperative to implement the mandatory check station and carcass movement restrictions in order to determine the extent and spread of CWD in free-ranging populations.

The amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, creates a mechanism for TC 1 deer breeding facilities to temporarily retain that status in the event that an accredited testing laboratory were to lose or misplace test samples in a number that could result in such facilities being noncompliant and therefore automatically lowered in status. As discussed earlier in this preamble, the amendment provides a grace period following the end of the permit year for qualifying deer breeders to submit the necessary test samples to replace lost samples.

The department received one comment opposing adoption of the proposed rules. The commenter stated that the department received test results for over 800 animals in SZ 3 and found one animal with CWD, indicating that 99.9 percent of tested animals were not infected; that persons who volunteered animals for testing are not going to get any benefit from their efforts and some are feeling betrayed as they will be treated the same as those who did not; that voluntary testing efforts will decrease tremendously; that landowners will see how the department treats landowners when a positive is found; that property values will be negatively affected; that the rules remove incentives to help the department because if a hunter does not submit a carcass for testing it is a crime but if they do submit to testing and a positive is discovered the department's response will be harsh. The commenter also stated that the department's enforcement potential is small and because offenders will not fear detection they will not comply; that the current rules have exerted a negative effect on the real estate market in SZ 3 and the rules as proposed will continue that decline; and that the commenter was told by the department that the outcome of genetic testing of the free-ranging deer that was CWD-positive would affect how the rules were proposed but no testing was performed. Finally, the commenter stated that the department destroyed a herd of very expensive white-tailed deer in Medina County and despite the cooperation of local landowners, the result has been more restrictions and no advancement of the research into the cause, transmission, or other science related to CWD.

The department disagrees with the comment and responds that the department agreed to a voluntary effort to produce sufficient CWD test results in SZ 3, but the number of tests needed to detect CWD with 99 percent probability of detecting the disease if one out of every 500 deer was infected was approximately 1,750, and the volunteer effort produced less than 50 percent of that goal. Nonetheless, CWD was detected in one of those samples that was collected from a free-ranging deer-- which in and of itself required an emergency response. As noted by the department, the volunteer testing effort was acceptable because heretofore CWD in this region of the state had been detected only in captive populations and associated release sites (deer held under department-issued permits are segregated from free-ranging populations, or are harvested and tested shortly after being transferred to registered release sites); as noted, the detection of the disease in a free-ranging deer profoundly alters the epidemiological situation, because free-ranging deer are not restricted in their movements and can infect any susceptible species with which they come into contact. Therefore, in discharging its statutory duty to protect and conserve native deer, the department believes it is imperative to institute mandatory testing of all deer harvested in CZ and SZ established by the rules in order to determine the extent and prevalence of the disease on the landscape. The department also responds that there is no reason for any landowner to believe that the department has discharged its duty in other than a straightforward, transparent, and inclusive manner. The department has been, as a matter of policy and practice, assiduous in communicating to the public and the regulated community its concerns with respect to CWD, the cause for those concerns, and potential avenues of action, and has listened attentively to and carefully considered the thoughts and opinions of interested parties. The department also disagrees that a landowner or hunter who participated in the voluntary sample-collection effort is now in a less-advantageous situation for having assisted the department, or that the rules as adopted are punitive in any respect. The department is deeply appreciative to those who have voluntarily contributed to the effort to manage CWD and trusts that most landowners and hunters understand that the rules are a responsible, scientifically sensible, and necessary response to a disease that threatens a wildlife resource that the department is charged with managing and conserving. With respect to concerns of the rules' impact on real estate values, the department disagrees with the comment and responds that because financial data regarding purchases and sales is generally not disclosed and is therefore unavailable for scrutiny, there is no way to either validate or disprove such an assertion or even to correlate it to department regulatory action; however, it would seem that an important consideration in any real estate transaction in an area where CWD is known to be present is whether CWD is on or near the property in question, which can be ascertained only by scientifically valid surveillance and testing. The department assumes that a prospective real estate buyer would prefer to know the relative risk of whether CWD is present. The commenter also stated that the rules will remove the incentive for hunters and landowners to cooperate with the department in implementing disease management efforts because hunters and landowners will fear a harsh response if CWD is detected. The department disagrees and responds that while the department certainly would have preferred for CWD not to be present in either captive or free-ranging populations, now that it is known to be present in this region of the state it is necessary to require every harvested deer to be presented at a check station for testing, which is the only way for the department to definitively determine the extent and the prevalence of the disease. With respect to the commenter's statement regarding genetic testing of the most recent positive, the department disagrees because even if it was determined that the CWD-positive deer had escaped from a release site where CWD had previously been confirmed, the infected deer could have shed the disease in the environment, infecting other animals. The commenter additionally stated that the department has destroyed expensive deer and despite the cooperation of landowners has imposed more restrictions without advancing a scientific understanding of CWD. The department disagrees and responds that disease management protocols in some cases require that herds be depopulated in order to mitigate the spread of disease. The department also responds that although the rules as adopted impose mandatory check station, carcass movement, and live-deer movement restrictions, the rules are not in response to landowners' or hunters' actions but are intended solely as a disease management and containment strategy, not as a research opportunity. No changes were made as a result of the comment.

The department received 31 comments supporting adoption of the proposed rules.

DIVISION 1. CHRONIC WASTING DISEASE (CWD)

31 TAC §§65.81, 65.82, 65.85, 65.88

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

§65.81.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 F.M. 1111 in Hudspeth County; thence south on F.M. 1111 to I.H. 10 thence west along I.H. 10 to S.H. 20; thence northwest along 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) Containment Zone 2: That portion of the state within the boundaries of a line beginning where I.H. 40 enters from the State of New Mexico in Deaf Smith County; thence east along I.H. 40 to U.S. 385 in Oldham County; thence north along U.S. 385 to the Oklahoma state line.

(C) Containment Zone 3 is that portion of the state lying within the area designated as Containment Zone 3 as depicted in the following figure, more specifically described by the following latitude-longitude coordinate pairs: -99.29398895, 29.63445412; -99.29825581, 29.63518578; -99.30259551, 29.63542449; -99.30693374, 29.63516617; -99.31119621, 29.63441523; -99.31530993, 29.63318453; -99.31763943, 29.63232767; -99.32143683, 29.63067377; -99.32384541, 29.62932681; -99.32666126, 29.62785671; -99.32852399, 29.62682249; -99.3307084, 29.62579214; -99.33264692, 29.62480476; -99.33469531, 29.62399444; -99.33870733, 29.62253062; -99.34246622, 29.62062167; -99.34590761, 29.61830028; -99.34897263, 29.61560618; -99.35160881, 29.61258551; -99.35377108, 29.60928997; -99.35542246, 29.60577597; -99.35653475, 29.60210367; -99.35708897, 29.5983359; -99.35732723, 29.5958866; -99.35816216, 29.59215856; -99.35843314, 29.58836717; -99.35813559, 29.58457729; -99.35746518, 29.58149671; -99.35704686, 29.57922857; -99.35590928, 29.57556223; -99.35423408, 29.57205703; -99.35204996, 29.56877292; -99.34939432, 29.56576608; -99.34750037, 29.56405471; -99.35143457, 29.56425823; -99.35576966, 29.56399832; -99.3600288, 29.56324581; -99.36315267, 29.56234122; -99.36719804, 29.56225886; -99.37150423, 29.56175112; -99.37569771, 29.5607562; -99.37779303, 29.56005572; -99.37803049, 29.5623695; -99.378892, 29.56609289; -99.38030214, 29.56968611; -99.38223684, 29.57308765; -99.38466302, 29.5762393; -99.38753921, 29.5790871; -99.39081619, 29.5815823; -99.39443789, 29.58368218; -99.39834232, 29.58535078; -99.40246262, 29.58655954; -99.40672826, 29.58728775; -99.41106988, 29.58752294; -99.41492754, 29.5874581; -99.41679263, 29.58825628; -99.41693098, 29.58831119; -99.41888048, 29.58901975; -99.42017245, 29.58942458; -99.42104538, 29.58966896; -99.42308196, 29.59015575; -99.4245459, 29.59043542; -99.4253236, 29.59055979; -99.42894461, 29.59093076; -99.4304456, 29.59098281; -99.43147613, 29.59099036; -99.43164893, 29.59098978; 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Figure: 31 TAC §65.81(1)(C) (.pdf)

(D) 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 this section or §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 any portion of a deer breeding facility or release site is within a CZ, the entirety of the deer breeding facility or release site is in the CZ.

(C) 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.

(D) Deer that escape from a deer breeding facility within a CZ may not be recaptured unless specifically authorized under a hold order or herd plan issued by the Texas Animal Health Commission.

(E) A TC 1 deer breeding facility located in a CZ may:

(i) receive deer from any facility in the state that is authorized to transfer deer; and

(ii) release or transfer breeder deer within the CZ.

(F) A TC 2 deer breeding facility located within a CZ may release breeder deer to immediately adjoining acreage if:

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

(ii) each breeder deer released has, within 60 days prior to release, been subjected to a tonsil biopsy test for CWD with a result of "not detected."

(G) Breeder deer may not be transferred to or from a TC 3 deer breeding facility located within a CZ.

(H) Breeder deer from any deer breeding facility designated as Movement Qualified under the provisions of Division 2 of this subchapter may be released within a CZ, provided the breeding facility is authorized to release deer under the provisions of this division; and

(i) that if a release occurs during a "hunting year" (as defined in §65.90 of this title (relating to Definitions)), harvest at the release site must be equal to or greater than the number of breeder deer released at that site before the last day of the hunting year, otherwise the harvest and reporting requirements of this subparagraph must be met before the last day of the hunting year immediately following the release; and

(ii) the owner of the release site complies with the requirements of §65.93 of this title (relating to Harvest Log).

(iii) A person who fails to comply with the requirements of subparagraph (H) of this paragraph commits an offense as provided in Parks and Wildlife Code, §43.367 and §65.89 of this division, and the department shall not authorize the additional release of breeder deer to that release site.

§65.82.Surveillance Zones; Restrictions.

The areas described in paragraph (1) of this section are SZs.

(1) Surveillance Zones.

(A) Surveillance Zone 1: That portion of the state lying within a line beginning where U.S. 285 enters from the State of New Mexico in Reeves County; thence southeast along U.S. 285 to R.M. 652; thence west along R.M. 652 to Rustler Springs Rd./FM 3541 in Culberson County; thence south along Rustler Springs Rd./F.M. 3541 to F.M. 2185; thence south along F.M. 2185 to Nevel Road; thence west along Nevel Road to County Road 501; thence south along County Road 501 to Weatherby Road; thence south along Weatherby Road to F.M. 2185; thence southwest along to F.M. 2185 to S.H. 54; thence south on S.H. 54 to U.S. 90; thence south along U.S. 90 to the Culberson County line; thence southwest along the Culberson County line to the Rio Grande River in Hudspeth County; thence north along the Rio Grande to F.M. 1088; thence northeast along F.M. 1088 to S.H. 20; thence southeast along S.H. 20 to I.H. 10; thence southeast along I.H. 10 to F.M 1111; thence north on F.M. 1111 to U.S. 62/180; thence east and north along U.S. 62/180 to the New Mexico state line in Culberson County.

(B) Surveillance Zone 2. That portion of the state lying within a line beginning at the New Mexico state line where U.S. 60 enters Texas; thence northeast along U.S. 60 to U.S. 87 in Randall County; thence south along U.S. 87 to S.H. 217 in Canyon; thence east along S.H. 217 to F.M. 1541; thence north along F.M. 1541 to Loop 335; thence east and north along Loop 335 to S.H. 136; thence northwest along S.H. 136 to N. Lakeside Dr.; thence north along N. Lakeside Dr. to E. Willow Creek Dr.; thence west along E. Willow Creek Dr. to Denton St.; thence north along Denton St. to E. Cherry; thence west along E. Cherry to N. Eastern St.; thence south along N. Eastern St. to E. Willow Creek Dr.; thence west along E. Willow Creek Dr. to U.S. 87; thence north along U.S. 87 to the City of Dumas; thence along the city limits of Dumas to U.S. 287 in Moore County; thence north along U.S. 287 to the Oklahoma state line.

(C) Surveillance Zone 3. That portion of the state not within the CZ described in §65.81(1)(C) of this title (relating to Containment Zones; Restrictions) lying within a line beginning at U.S. 90 in Hondo in Medina County; thence west along U.S. Highway 90 to the Sabinal River in Uvalde County; thence north along the Sabinal River to F.M. 187; thence north along F.M. 187 to F.M. 470 in Bandera County; thence east along F.M. 470 to Tarpley in Bandera County; thence south along F.M. 462 to U.S. 90 in Hondo.

(D) Existing SZs may be modified and additional SZs 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 subparagraph (B) of this paragraph, no person within a SZ may conduct, authorize or cause any activity involving the movement of a susceptible species, into, out of, or within a SZ 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 a SZ.

(B) Breeder Deer.

(i) Except as provided in Division 2 of this subchapter, a breeding facility that is within a SZ and designated as a:

(I) TC 1 breeding facility may:

(-a-) transfer to or receive breeder deer from any other deer breeding facility in this state that is authorized to transfer deer; and

(-b-) transfer breeder deer in this state for purposes of liberation, including to release sites within the SZ.

(II) TC 2 breeding facility:

(-a-) may receive deer from any facility in the state that is authorized to transfer deer;

(-b-) may transfer deer to a breeding facility or release site that is within the same SZ; and

(-c-) is prohibited from transferring deer to any facility outside of the SZ.

(ii) Deer that escape from a breeding facility within a SZ may not be recaptured unless specifically authorized under a hold order or herd plan issued by the Texas Animal Health Commission.

(C) Breeder deer from a deer breeding facility located outside a SZ may be released within a SZ if authorized by Division 2 of this subchapter.

(D) Permits to Transplant Game Animals and Game Birds (Triple T permit). The department may authorize the release of susceptible species in a SZ under the provisions of a Triple T permit issued by the department under the authority of Parks and Wildlife Code, Chapter 43, Subchapter E and the provisions of Subchapter C of this chapter, but the department will not authorize the trapping of deer within a SZ for purposes of a Triple T permit.

(E) Deer Management Permit (DMP). The department may issue a DMP for a facility in a SZ; however, any breeder deer introduced to a DMP facility in a SZ must be released to the property for which the DMP is issued and may not be transferred anywhere for any purpose.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 30, 2017.

TRD-201702517

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: July 24, 2017

Proposal publication date: April 21, 2017

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


DIVISION 2. CHRONIC WASTING DISEASE - MOVEMENT OF DEER

31 TAC §65.94

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

§65.94.Breeding Facility Minimum Movement Qualification.

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

(1) has not:

(A) met the provisions of this subparagraph:

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

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

(B) beginning with the report year that starts April 1, 2017, and each April 1 thereafter:

(i) achieved "fifth-year" or "certified" status in the TAHC CWD Herd Certification Program; or

(ii) submitted CWD "not detected" test results for at least 80% of eligible mortalities occurring in the facility during the previous reporting year; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the eligible-aged deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by 3.6 percent;

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

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

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

(b) A breeding facility that has been designated as NMQ for failure to comply with the testing requirements specified in subsection (a) of this section will be restored to MQ when the required "not detected" test results prescribed by subsection (a) of this section are submitted.

(c) If a breeding facility that has obtained TC 1 status is unable to satisfy the criteria of this subchapter necessary to maintain TC 1 status by March 31 of any year solely because tissue samples have been documented by an accredited testing facility as having been received and lost, the breeding facility status will be reduced to TC 2 unless:

(1) ante-mortem substitution samples necessary to maintain TC 1 status are submitted to an approved diagnostic laboratory by the latter of the following:

(A) May 15 immediately following the report year to which the substitution test results would apply; or

(B) 30 days after the date on which the breeder is notified by the accredited testing facility that the tissue samples have been lost; and

(2) the required number of "not detected" test results are obtained from the ante-mortem substitute samples submitted to satisfy paragraph (1) of this subsection.

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

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 30, 2017.

TRD-201702518

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: July 24, 2017

Proposal publication date: April 21, 2017

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