The Texas Parks and Wildlife Commission (Commission), in a duly noticed meeting on January 21, 2016, adopted new §65.94 concerning Chronic Wasting Disease - Deer Management Permit Provisions without changes to the proposed text as published in the December 18, 2015, issue of the Texas Register (40 TexReg 9086).

The new rule is constituted as part of Subchapter B, Division 2, Chronic Wasting Disease - Movement of Deer. The department wishes to emphasize that the new rule is an interim replacement for current §65.94, adopted on an emergency basis on October 5, 2015, and published in the October 23, 2015, issue of the Texas Register (40 TexReg 7305), and extended by executive order dated January 28, 2016 (to be published in the February 12, 2016, issue of the Texas Register), which is necessary to maintain regulatory continuity for the duration of the 2015-2016 deer season and the period immediately thereafter. Based on additional information from the ongoing epidemiological investigation, disease surveillance data collected from captive and free ranging deer herds, guidance from the Texas Animal Health Commission, and input from stakeholder groups, the department intends to review the interim rule, along with interim rules governing deer breeder permits and rules regarding permits to Trap, Transport and Transplant (Triple T) deer following the close of the deer season and present the results of that review to the Commission at its March 2016 meeting for possible modifications.

The new rule is part of a comprehensive regulatory response intended to increase the probability of detecting chronic wasting disease (CWD) if a deer infected with CWD is released from a DMP facility. The new rule was developed in cooperation with the department, the Texas Animal Health Commission (TAHC), and other stakeholders (including veterinarians, epidemiologists, resource managers, and landowners) 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 has been correlated to deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. The implications of CWD to the multi-billion dollar ranching, hunting, and wildlife management economies in Texas are significant, unless it is contained and controlled.

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 within an enclosure on property surrounded by a fence capable of retaining deer. 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 a buck 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. The current rules provide, among other things, that a buck deer introduced to a DMP pen from a deer breeding facility may be liberated from the DMP pen to the surrounding or adjacent high-fenced acreage identified in the deer management plan associated with the DMP facility, returned to the deer breeding facility from which the buck deer was transferred, or transferred to another deer breeding facility. All other deer introduced to a DMP pen, whether by trapping from a free-ranging herd or transfer from a deer breeding facility, must be liberated from the DMP enclosure by a date specified by the department in the DMP permit.

The department has been concerned for over a decade about the possible emergence of CWD in free-ranging and captive deer populations in Texas, and 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 closure of Texas to 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). Prior to 2012, CWD had not been known to exist in Texas; however, 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 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 regulatory and policy measures to be taken to protect white-tailed and mule deer in Texas. Based on recommendations from the CWD Task Force, the department subsequently 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 designated check stations to be tested for CWD.

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 breeding facilities 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 breeding facilities) either received deer from the index facility or received deer from a deer breeding facility that had received deer from the index facility. CWD has subsequently been detected in an additional deer breeding facility.

In response, the department engaged in a vigorous effort to involve and solicit input from other regulatory agencies, various stakeholder groups, and the regulated community to develop a regulatory response that both discharged the department's duty to protect the wildlife resources of the state for the enjoyment of the people and to the greatest extent possible minimized disruption to the regulated community. As a result of that effort, the department on August 18, 2015, adopted emergency rules governing deer breeder permits (40 TexReg 5566), which were extended for an additional 60 days on December 1, 2015 (41 TexReg 9), and subsequently replaced by interim rules adopted by the commission on November 5, 2016, to be published in the February 5, 2016, issue of the Texas Register, and taking effect February 2, 2016.

Those rules (§§65.90 - 65.93 of this subchapter, or "CWD deer breeder rules") address 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 rules set forth specific CWD test requirements for deer breeders, which would have to be satisfied in order to transfer deer to other deer breeders, DMP facilities, or for purposes of release. The CWD deer breeder rules also impose CWD test requirements on sites where certain breeder deer are liberated (release sites). The CWD deer breeder rules create a tiered system of testing requirements based on CWD monitoring and the performance of required testing, and thus represent a level of risk of transmission of CWD for each deer breeding facility and release site. The level of risk is also based on whether the facility contains or is connected to exposed animals.

Epidemiological science dictates that a population receiving individuals from a higher risk population is itself at greater risk. Therefore, the CWD deer breeder rules address transfers from higher risk to lower risk populations by requiring the receiving deer breeding facility to assume the status of the originating facility or release site to comply with the testing requirements associated with the status of the originating facility, if the status of the originating facility is lower than the status of the receiving facility. Because deer from deer breeding facilities and release sites may be introduced into a DMP facility and then either released or returned to a breeding facility, it is necessary to identify how DMP facilities are impacted by the status level of breeding facilities and release sites The level of risk is based on the degree of testing and exposure to CWD-positive or CWD-exposed animals.

The department notes for purposes of clarification that the provisions of §§65.90 - 65.93 of this subchapter also apply to the new rule. The applicable provisions would include, for example, the definitions in §65.90 of this subchapter and the required testing performance for the categories and classes of breeding facilities and release sites established in §§65.90 - 65.93 of this subchapter.

As noted previously, the new rule replace the emergency rule adopted on October 5, 2016, and extended for an additional 60 days on December 1, 2015 (41 TexReg 9). The new rule differs from the emergency rule as follows:

1. In subsection (a)(1) of the emergency rule, a DMP facility is described as "a property (including the pen in which deer are temporarily detained for breeding purposes and the high-fenced acreage to which the deer are released)." This is technically incorrect. In TWIMS (defined in §65.90 of this title as the "department's Texas Wildlife Information Management Services (TWIMS) online application"), each DMP property gets one facility identification for the enclosure (pen) in which deer are temporarily detained and one facility identification for surrounding acreage to which the deer are released. To avoid confusion, the new rule establishes that the word "facility" as used in the rule text means the DMP pen.

2. In subsection (b) of the emergency rule, the department set forth the various requirements and restrictions for Level 2 and Level 3 DMP facilities. Level 1 DMP facilities were not addressed because the Level 1 DMP category is a default value, consisting of all DMP facilities that either do not receive breeder deer at all or received breeder deer solely from TC 1 breeding facilities (and did not receive any deer from a Class II or Class III release site). As a result, the acreages to which deer are released from those facilities are Class I release sites and no CWD testing is required under §§65.90 - 65.93 of this subchapter. Therefore, to ensure clarity, subsection (b)(1) provides that a Level 1 DMP facility is a DMP facility that is not a Level 2 or 3 DMP facility.

3. Subsection (b)(4) of the emergency rule imposed tagging requirements for deer introduced to a Level 3 DMP facility or released on a Class III release site. The department has determined that because paragraphs (1) - (3), (5), and (6) address the assignment of DMP category designations, paragraph (4) interrupts that process, since it addresses a different topic; therefore, in the new rule the tagging requirements from subsection (b)(4) of the emergency rule are designated as subsection (b)(8).

New §65.94(a) sets forth two general provisions.

New §65.94(a)(1) identifies exactly what is meant by "DMP facility." A DMP facility is an enclosure in which deer are temporarily detained for breeding purposes permitted under the provisions of Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP)). The provision is necessary in order to prevent any ambiguity arising from the use of the term "DMP facility."

New §65.94(a)(2) defines "status" as "the level of testing required by this division for any facility registered in TWIMS (deer breeding facility, trap site, release site, or DMP facility)." The definition of "status" is necessary because the status of any given facility determines the testing and movement requirements that apply to the facility and because it is necessary to clarify that the term applies to all types of permits authorizing the possession of live deer. The new rule also establishes that the highest status for DMP facilities is Level 1 and the lowest status is Level 3, which is necessary to prevent potential misinterpretation. The designation of DMP facility status will also provide consistency with the provisions of §§65.90 - 65.93 of this subchapter, regarding Chronic Wasting Disease - Movement of Breeder Deer, which designate a Transfer Category (TC) status (TC 1, TC 2, TC 3) for deer breeding facilities and a status for release sites (Class I, II, III). Under §§65.90 - 65.93 of this subchapter, the lower number is the higher status. For example, for deer breeding facilities, a TC 1 is the highest status. For release sites, Class I is this highest status.

New §65.94(b) sets forth several provisions specific to the acquisition and transfer of deer for DMP purposes.

New §65.94(b)(1) - (8) set forth the status (and therefore, the testing requirements) for release sites for deer from DMP facilities based on the status of the source of deer obtained for DMP purposes.

New subsection (b)(1) stipulates that a DMP facility that is not a Level 2 or Level 3 DMP facility is a Level 1 DMP facility. Because the status of a deer breeding facility or a release site is not impacted by receiving deer from a Level 1 DMP facility, no additional provisions are needed to address the impact of deer being held in a Level 1 DMP facility.

New subsection (b)(2) stipulates that a DMP facility that receives deer from a Class II release site or TC 2 breeding facility is a Level 2 DMP facility, unless the DMP facility receives deer from a TC 3 breeding facility or Class III release site.

New subsection (b)(3) stipulates that a DMP facility receiving deer from a TC 3 breeding facility or Class III release site is a Level 3 DMP facility.

New subsection (b)(4) stipulates that if a breeder deer is transferred from a TC 3 breeding facility to a Level 1 or 2 DMP facility, the DMP facility immediately becomes a Level 3 DMP facility and the release site to which the deer are liberated from the DMP pen becomes a Class III release site beginning on the Saturday nearest to September 30 of the following year.

New subsection (b)(5) provides that if a breeder deer is transferred from a TC 2 breeding facility to a Level 1 DMP facility, the DMP facility immediately becomes a Level 2 DMP facility and the release site to which deer are liberated from the DMP facility becomes a Class II release site beginning on the Saturday nearest to September 30 of the following year (the first day of lawful deer hunting), unless the release site is or becomes a Class III release site pursuant to other provisions of this division.

New subsection (b)(6) provides that if a breeder deer is transferred to a deer breeding facility from a DMP facility of lower status, the breeding facility receiving the breeder deer automatically assumes the numeric status of the DMP facility. For example, if a breeder deer is transferred to a TC 2 breeding facility from a Level 3 DMP facility, the deer breeding facility becomes a TC 3 breeding facility.

New subsection (b)(7) provides that a DMP facility automatically becomes a Level 3 DMP facility if deer are introduced to the DMP facility from a Tier 1 facility (a Tier 1 facility is a facility that has a direct connection to a CWD-positive facility, and is defined in §65.90(21) of this subchapter).

New §65.94(b)(8) prohibits the introduction of a breeder deer into a Level 3 DMP facility unless the deer is tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear. (RFID and NUES ear tags are defined in current §65.91.) New §65.94(b)(8) also prohibits the release of a breeder deer onto a Class III release site unless the deer is tagged, prior to leaving the originating facility, by attaching a button-type RFID or NUES tag approved by the department to one ear. A Level 3 DMP facility is the highest risk DMP facility. Similarly, deer within a Class III release site are at a higher risk for CWD. Therefore, the department believes that breeder deer introduced into a Level 3 DMP facility or released onto a Class III site should be readily identifiable for purposes of subsequent CWD testing. Therefore, the proposed new rule requires such deer to be ear-tagged prior to release.

The department received three comments opposing adoption of the proposed rule. All three commenters provided a reason or rationale for opposing adoption. The comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that deer breeding should be prohibited. The department neither agrees nor disagrees with the comment and responds that the comment is not germane because the rule does not regulate deer breeders. To the extent that the commenter is referring to the relationship between deer breeding and DMP activities, the department disagrees and responds that deer breeding and DMP activities are both authorized by the Texas Parks and Wildlife Code. No changes were made as a result of the comment.