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 §65.94, concerning Chronic Wasting Disease - Deer Management Permit Provisions. The new emergency rule will be part of Subchapter B, Division 2, Chronic Wasting Disease - Movement of Deer. Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, and Deer Management Permit (DMP) regulations for white-tailed deer at 31 TAC Chapter 65, Subchapter D, the department may allow the temporary possession of free-ranging white-tailed or mule deer for breeding purposes. At the current time, there are no rules authorizing DMP activities for mule deer.

In addition to authorizing the temporary possession of free-ranging white-tailed deer for breeding purposes, department regulations authorize the introduction of deer from a deer breeding facility into a DMP facility for breeding purposes. (Deer breeders are permitted under Parks and Wildlife Code, Chapter 43, Subchapter L and 31 TAC Chapter 65, Subchapter T.) A buck deer that is introduced from a deer breeding facility to a DMP facility may be liberated from the DMP facility, returned to the breeding facility from which the buck deer was transferred, or transferred to another deer breeder. All doe deer introduced to a DMP facility, whether by trapping from a free-ranging herd or transfer from a deer breeding facility must be liberated upon release from the DMP facility.

For the reasons explained in this preamble, the department's executive director has determined that the presence of chronic wasting disease (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 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 three Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico). The department estimates that in the past five years, 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. The intent of the new emergency rule is to reduce the probability of CWD being spread from areas where it might exist and to increase the probability of detecting CWD where it does exist.

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 at a later date.

The emergency rule sets forth provisions governing the transfer of breeder deer to and from DMP facilities. The new rule is part of a broader 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. Tex. Agric. 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 transmissible spongiform encephalopathy (TSE), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE) in cattle, 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. 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 free-ranging populations correlates with deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. The implications of CWD for Texas and its multi-billion dollar ranching, hunting, and wildlife management economies could 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 recordkeeping. (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 adopted emergency rules on August 18, 2015 (40 TexReg 5566) to address deer breeding facilities and release sites for breeder deer ("emergency CWD rules"). The department also has proposed new rules to replace the emergency CWD rules. Those rules were published for public comment in the October 2, 2015, issue of the Texas Register and are intended to be considered for adoption by the Texas Parks and Wildlife Commission (the Commission) at its November 5, 2015, meeting.

The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas. Since 2002, more than 32,882 "not detected" CWD test results were obtained from free-ranging (i.e., not breeder) deer in Texas. Additionally, 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 to DMP facilities and subsequent DMP release sites and to increase the probability of detecting CWD if it does exist.

The department notes for purposes of clarification that the provisions of the emergency CWD rules adopted August 18, 2015 (as well as the proposed replacement rules, if adopted) apply to the emergency DMP rule adopted in this rulemaking, to the extent applicable. The applicable provisions would include, for example, the definitions in §65.90 and the categories and classes of breeding facilities and release sites.

The new emergency rule therefore sets forth specific provisions that tie the movement of breeder deer for the purposes of DMP activities to the testing requirements imposed by §§65.90 - 65.93 of this title for release sites, which require CWD testing to be performed at the site where DMP deer are to be liberated, depending on the source of the deer detained in a DMP facility. The new emergency rule also imposes a status change for a deer breeding facility that receives a deer from a DMP facility of lower status. The new emergency rule also prohibits the transfer of breeder deer to a Level 3 DMP facility or a Class III release site unless the deer has been tagged with an approved RFID or NUES ear tag.

The emergency action is necessary to protect the state's free-ranging and captive white-tailed deer populations.

The rule is 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, Subchapters R and R-1, authorize the department to regulate the possession of free-ranging white-tailed or mule deer for breeding purposes.