The Texas Parks and Wildlife Commission (Commission) in a duly noticed meeting on November 5, 2015 adopted new §§65.90 - 65.93, concerning Disease Detection and Response, with changes to the proposed text as published in the October 2, 2015, issue of the Texas Register (40 TexReg 6856). The new rules are constituted as new Division 2 within Chapter 65, Subchapter B, entitled Chronic Wasting Disease - Movement of Deer.

The change to §65.90(20) alters the definition of "Status" to clarify that, with regard to breeding facilities, "status" is the level of testing "performed" rather than the level of testing "required." Therefore, the definition was modified to define "status" as "the level of testing performed or required by a deer breeding facility or a release site pursuant to this division."

The change to §65.90(21) alters the definition of "Tier 1 facility" for purposes of clarification. As proposed, the definition stated that a Tier 1 facility is "Any facility registered in TWIMS that has received an exposed deer within the previous five years; or transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility; and is subject to a TAHC hold order." The department has determined that the structure of the definition in the proposal, as well as the phrase "subject to a TAHC hold order" could be a source of confusion. In the interests of clarity, subparagraphs (A) and (B) have been combined and subparagraph (C) has been redesignated as subparagraph (B) and has been reworded to read "has not been released from a TAHC hold order related to activity described in (A)." Thus, if a facility has transferred deer to or accepted deer from an index facility and has not been released from a TAHC hold order, it is a Tier 1 facility.

The change to §65.91 adds new subsection (j) to provide for the expiration of the effectiveness of the division on August 31, 2016. The Texas Parks and Wildlife (department) intends the rules as adopted to be an interim replacement for the emergency rules adopted on August 18, 2015 (40 TexReg 5566), and extended on December 14, 2015 (41 TexReg 9), hereafter referred to as "emergency CWD breeder rules." Based on additional information from the ongoing epidemiological investigation, disease surveillance data collected from captive and free-ranging deer herds, guidance from the TAHC, and input from stakeholder groups, the department intends to review the interim rules and will make an initial recommendation to the Commission at its March 2016 meeting.

The change to §65.92 alters subsection (a)(1)(C) to clarify the reference to DMP facilities. As noted elsewhere in this preamble, the department adopted emergency rules to address the movement of white-tailed via Deer Management Permit (DMP) (40 TexReg 7305). 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. In addition, interim Deer Management Permit (DMP) rules have been proposed (40 TexReg 9086) and will be considered for adoption by the Commission at its January 21, 2016 meeting. As a result, the DMP regulation would include regulations in addition to those contained in 31 TAC Chapter 65, Subchapter R. Therefore, to avoid confusion, this reference is replaced with a reference to the appropriate provision of the Parks and Wildlife Code and a more generic reference to the "department's DMP regulations."

The change to §65.93 alters subsection (b)(2)(B)(i), (b)(2)(C), and (b)(3)(B)(ii) to replace the reference to the "last day of lawful deer hunting at the site in the previous year" with "August 24, 2015." Operationally, in calculating the number of CWD samples required by this subparagraph for Class II release sites, the department is basing the percentage on the number of deer released between August 24, 2015 and the last day of lawful hunting at the site in the current year. This change is necessary to ensure clarity.

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. A deer breeder permit affords deer breeders certain privileges, such as (among other things) the authority to buy, sell, transfer, and release captive-bred white-tailed and mule deer, subject to the regulations of the Commission and the conditions of the permit. Breeder deer may be purchased, sold, or transferred only for purposes of propagation or liberation. There are currently 1,275 permitted deer breeders operating more than 1,300 deer breeding facilities in Texas.

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). Under the provisions of the Agriculture Code, §161.101(a)(6), CWD is a reportable disease. A veterinarian, veterinary diagnostic laboratory, or person having care, custody, or control of an animal is required to report the existence of CWD to TAHC within 24 hours after diagnosis. 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 DMP facilities in Texas, as well as two destinations in Mexico. 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. At least one of those locations, a deer breeding facility in Lavaca County, has been confirmed to have CWD positive white-tailed deer acquired from the index facility.

The new rules impose CWD testing requirements and movement restrictions for white-tailed deer and mule deer held under the authority of deer breeder permits issued by the department. The new rules are a result of extensive cooperation between the department and the 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).

The department and TAHC have been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas. As a result, the department and TAHC have worked together to develop a Chronic Wasting Disease Management Plan (the Plan) to guide the department and TAHC in addressing risks, developing management strategies, and protecting big game resources from CWD in captive or free-ranging cervid populations. The most recent version of the Plan was finalized in March 2015. Much of the information provided in this preamble is also contained in the Plan.

CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, black-tailed deer, elk, red deer, sika, moose, 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 variant Creutzfeldt-Jakob disease (vCJD) (found 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 it is a progressive, fatal disease with no known immunity or treatment. CWD is known to occur via natural transmission in white-tailed deer, mule deer, black-tailed deer, red deer, sika deer, elk, and moose (Sohn et al. 2011, CWD Alliance 2012, Saunders et al. 2012). There are two primary sources of exposure to CWD for uninfected deer: (1) CWD infected deer, and (2) CWD contaminated environments (Williams et al. 2002, Miller et al. 2004, Mathiason et al. 2009). It is believed that some TSE prions may appear spontaneously and sporadically, but there is no evidence of spontaneous CWD (Chesebro 2004). The presence of infected deer over time increases the number of infectious CWD prions in the environment. As CWD becomes established in an area, environmental contamination may become the primary source of exposure for uninfected deer. Conversely, in areas where CWD is not established, and where the environment is relatively uncontaminated, direct animal contact is considered the most likely source of transmission of CWD to uninfected deer.

In early stages of infection, limiting the growth of environmental contamination through the reduction of infected individuals may offer some control in limiting disease prevalence and distribution (Wasserberg et al. 2009, Almberg et al. 2011). However, infected individuals on the landscape serve as a reservoir for prions which will be shed into the environment. Prions are shed from infected animals in saliva, urine, blood, soft-antler material, and feces (Gough et al. 2009, Mathiason et al. 2009, Saunders et al. 2012). There are no known management strategies to mitigate the risk of indirect transmission of CWD once an environment has been contaminated with infectious prions. This makes eradication of CWD very difficult, if not impossible in areas where CWD has been established for a long period before initial detection. Although the incubation period for CWD is not fully understood, a susceptible species infected with CWD is expected to display symptoms within five years after infection.

As CWD is invariably fatal, a high prevalence of the disease in free-ranging populations has been correlated to deer population declines. Human dimensions research suggests that hunters will avoid areas of high CWD prevalence (See, e.g. Duda 2011, Needham et al. 2007, Vaske 2009, Zimmer 2012). The potential implications of CWD for Texas and its annual, multi-billion dollar ranching, hunting, real estate, tourism, and wildlife management-related economies could be significant, unless it is contained and controlled.

The number of states and provinces in which CWD has been discovered has steadily increased in the past decade, forcing many state and provincial wildlife agencies, hunters, and stakeholders to confront the myriad of consequences and implications this disease presents. Implications of CWD are often centered on the anticipated, or unknown potential impacts to wild cervid populations, most notably concerns for population declines resulting from infected herds. Disease eradication is expected to become less attainable as CWD becomes more established in a population, emphasizing the criticality of a sound CWD surveillance and response plan. Of course, disease prevention is the best approach to protecting cervid populations and avoiding social and economic repercussions resulting from CWD or other wildlife diseases (Sleeman & Gillin 2012).

Currently, the only test certified by the U.S. Department of Agriculture (USDA) for CWD must be conducted post-mortem by extracting and testing the obex (a structure in the brain) or medial retropharyngeal lymph node. However, the department is actively collaborating with researchers to investigate possible efficacious live-animal tests that can be integrated into the state's overall disease surveillance efforts.

In addressing CWD, the Plan sets forth three major goals: (1) Minimize CWD risks to the free-ranging and captive white-tailed deer, mule deer, and other susceptible species in Texas; (2) Establish and maintain support for prudent CWD management with hunters, landowners, and other stakeholders; and (3) Minimize direct and indirect impacts of CWD to hunting, hunting related economies, and conservation in Texas. The department is guided by these three goals in the development of rules needed to address CWD.

As part of the department's surveillance efforts, prior to July 1, 2015, more than 32,882 "not detected" CWD test results were obtained from free-ranging deer (i.e., not breeder deer) in Texas, and deer breeders had submitted 12,759 "not detected" test results as well. The intent of the new rules is to increase the probability of detecting and containing CWD where it exists.

Previous CWD Rulemaking

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 free-ranging mule deer sampled in the Texas portion of the Hueco Mountains tested positive for CWD. In response, the department and 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. Those rules (31 TAC §§65.80 - 65.88), among other things, require deer harvested in a specific geographical area (the Containment Zone), to be presented at check stations to be tested for CWD.

Response to June 2015 CWD Discovery

Upon discovery of CWD in Medina County in June 2015, the department and TAHC convened the CWD Task Force to advise the department on the appropriate measures to be taken in response to the discovery. The CWD Task Force met on July 14, August 6, and September 1, 2015. In addition, on July 8, July 24, August 6, and September 16, 2015, the department and TAHC held stakeholder conference calls, some or all of which were attended by representatives of impacted groups, including the Texas Deer Association, the Deer Breeders Corporation, the North American Deer Farmers Association, the Exotic Wildlife Association, the Texas Wildlife Association, the Texas and Southwest Cattle Raisers Association, the Texas Chapter of Wildlife Society.

Furthermore, the department convened the CWD Working Group, which is comprised of representatives from the department, TAHC, Texas A&M Veterinary Medical Diagnostic Laboratory (TVMDL), and the United States Department of Agriculture - Animal Plant Health Inspection Service - Veterinary Services (USDA-APHIS-VS). Members of the CWD Working Group with expertise in epidemiology and/or disease management participated in numerous meetings and discussions in developing a CWD management strategy, of which the rules are a part.

Emergency CWD breeder rules were adopted on August 18, 2015 (40 TexReg 5566). The emergency CWD breeder rules were extended on December 14, 2015 (41 TexReg 9). Also as noted previously, the rules adopted in this rulemaking will supersede and replace the emergency CWD breeder rules.

Also, to address other types of deer movement that could result in the transmission of CWD, emergency rules were adopted to address movement of white-tailed or mule deer via a Trap, Transport and Transplant (Triple T) Permit (40 TexReg 7307), and via a DMP (40 TexReg 7305). In addition, as mentioned previously, interim DMP rules have been proposed (40 TexReg 9086) and will be considered for adoption by the Commission at its January 21, 2016 meeting.

In addition to the regulatory response (which includes enhanced CWD testing requirements), the department has undertaken an effort to obtain additional CWD tests from hunter-harvested deer on a voluntary basis. The department established goals for testing of hunter harvested deer for each of the state's 33 Resource Management Units (RMU). (An RMU is an area of the state with similar soils, vegetation types and land use practices.) As of December 20, 2015, department staff have collected >9,000 hunter-harvested samples statewide during the 2015-16 hunting season.

Current CWD Rulemaking

The new rules set forth specific CWD testing requirements for deer breeders, which would have to be satisfied in order to transfer deer to other deer breeders (or other captive-deer facilities), or for purposes of release. The new rules also impose CWD testing requirements on some sites where breeder deer are liberated (release sites). The testing strategy established in the rules is intended to increase surveillance and to prevent the spread of CWD through permitted activities.

One of the most effective approaches to managing infectious diseases and arresting the spread of a disease is to segregate suspicious individuals and populations from unexposed populations. As a matter of epidemiological probability, when animals from a population at higher risk of harboring an infectious disease are introduced to a population of animals at a lower risk of harboring an infectious disease, the confidence that the receiving population will remain disease-free is reduced.

Therefore, in establishing testing and other requirements, the rules classify breeding facilities and release sites based on the epidemiological likelihood that the breeder facility or release site will contain or spread CWD. In other words, the classifications are based on the relative level of risk for CWD associated with the breeding facility or release site. Breeding facilities are classified as Transfer Category 1 (TC 1), Transfer Category 2 (TC 2), or Transfer Category 3 (TC 3). TC 1 breeding facilities are facilities that have a relatively low risk for CWD and TC 3 breeding facilities are facilities that have a higher risk for CWD. TC 1 breeding facilities are considered the highest status breeding facilities under the new rules. Similarly, release sites are classified as a Class I, Class II, or Class III release site. As with breeding facilities, a Class I release site poses less risk and a Class III site poses more risk. Class I release sites are considered the highest status release sites.