Pursuant to Parks and Wildlife Code, §12.027, and Government Code, §2001.034, the executive director of the Texas Parks and Wildlife Department (the department) adopts, on an emergency basis, new §§65.90 - 65.93, concerning Disease Detection and Response. The new emergency rules will be constituted as new Division 2 within Chapter 65, Subchapter B, entitled Chronic Wasting Disease - Movement of Breeder Deer. Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of captive-raised deer within a facility for breeding purposes and the release of such deer into the wild. To the extent that any provision of the new division conflicts with any other provision of Chapter 65, the new division will prevail, except as noted.

For the reasons explained in this preamble, the department's executive director has determined that the presence of CWD poses an immediate danger to white-tailed and mule deer, which are species authorized to be regulated by the department, and that the adoption of these rules on an emergency basis with fewer than 30 days' notice is necessary to address this immediate danger.

On June 30, 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 chronic wasting disease (CWD). 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 is unknown at this time. Within the last five years, the index facility accepted deer from 30 other Texas deer breeders and transferred 835 deer to 147 separate sites (including 96 deer breeding facilities, 46 release sites, and two Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico). (A DMP is a permit issued by the department under rules adopted pursuant to Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, that allows the temporary possession of free-ranging white-tailed or mule deer for breeding purposes.) The department estimates that more than 728 locations in Texas (including 384 deer breeders) either received deer from the index facility or received deer from a deer breeder who had received deer from the index facility, representing approximately 30% of the total number of deer breeders in the state.

As provided in the Texas Administrative Code, the emergency rules will initially be in effect for no longer than 120 days, but may be extended for an additional 60 days. It is the intent of the department to also publish proposed rules pursuant to the Administrative Procedure Act's notice and comment rulemaking process.

The emergency rules impose CWD testing requirements and movement restrictions for white-tailed deer and mule deer held under the authority of deer breeder's permits issued by the department. The 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 authorized to manage "any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable, even if the agent of transmission is an animal species that is not subject to the jurisdiction" of TAHC. Texas Agricultural Code §161.041(b).

CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (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; however, there is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease in wild populations correlates with 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 expected to be significant, unless contained and controlled.

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 tested positive for CWD. In response, the department and the Texas Animal Health Commission (TAHC) convened the CWD Task Force, comprised of wildlife-health professionals and cervid producers, to advise the department on the appropriate measures to be taken to protect white-tailed and mule deer in Texas. Based on recommendations from the CWD Task Force, the department adopted new rules in 2013 (37 TexReg 10231) to implement a CWD containment strategy in far West Texas. The rules among other things require deer harvested in a specific geographical area to be presented at check stations to be tested for CWD.

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 28,209 "not detected" CWD test results were obtained from free-ranging (i.e., not breeder) deer in Texas. Deer breeders have submitted 12,759 "not detected" test results to the department. The intent of the new emergency rules is to reduce the probability of CWD being spread from facilities where it might exist and to increase the probability of detecting CWD if it does exist.

The new emergency rules therefore set forth specific testing requirements for deer breeders, which would have to be satisfied in order to move deer to other deer breeders or for purposes of release. The new emergency rules also impose similar testing requirements on sites where breeder deer are liberated (release sites). The other significant component of the rules is that they restrict the release of breeder deer solely to enclosures surrounded by a fence of at least seven feet in height and that is capable of retaining deer at all times. Because deer held under deer breeder's permits are frequently liberated for stocking and/or hunting purposes (27,684 in 2014), the potential for disease transmission to free-ranging deer is significant, given that the source of CWD in the index facility is unknown and the large number of deer that have been moved to other breeding facilities and/or released to the wild.

The emergency action is necessary to protect the state's white-tailed and mule deer populations, as well as the associated hunting and deer breeding industries. To minimize the severity of biological and economic impacts resulting from CWD, the rules implement a more rigorous testing protocol within certain deer breeding facilities and at certain release sites. The new emergency rules allow most breeder deer to continue to be released because the department believes that the need to protect free-ranging populations must be balanced with the interests of the more than 1,300 deer breeders in the state.

The rules are adopted on an emergency basis under Parks and Wildlife Code, §12.027, which authorizes the department's executive director to adopt emergency rules if there is an immediate danger to a species authorized to be regulated by the department, and under Government Code §2001.034, which authorizes a state agency to adopt such emergency rules without prior notice or hearing. In addition, Parks and Wildlife Code, Chapter 43, Subchapter L, authorizes the department to regulate the possession of white-tailed and mule deer for scientific, management, and propagation purposes.