The Texas Parks and Wildlife Department (the Department, or TPWD) proposes the repeal of §§65.90 - 65.94 and new §§65.90 - 65.99, concerning Chronic Wasting Disease - Movement of Deer. The rules proposed for repeal were intended to function as interim rules (Interim Deer Breeder Rules) in order to maintain regulatory continuity for the duration of the 2015-2016 deer season and the period immediately thereafter. As stated in previous rulemakings, the department's intent was to review the interim rules and, 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, present the results of that review to the Parks and Wildlife Commission (Commission) in the spring of 2016 for possible modifications.

To ensure that the concerns and interests of the regulated community were fully understood and considered, the Department engaged the Center for Public Policy Dispute Resolution at the University of Texas School of Law to provide facilitation services for the spectrum of stakeholders (including deer breeders, landowners and land managers, hunters, veterinarians, wildlife enthusiasts, the Texas Animal Health Commission (TAHC), and the Department), the purpose of which was to negotiate and develop a consensus concerning the essential components of eventual regulations to comprehensively address and implement effective chronic wasting disease (CWD) management strategies. The stakeholder group convened three times during February and March at which time apparent consensus was reached. The stakeholders also participated in a final phone conference on March 21. The official report of the facilitator is available on the department's website at http://tpwd.texas.gov/huntwild/wild/diseases/cwd/.

At the March 23, 2016, meeting of the Texas Parks and Wildlife Commission (Commission), Department staff briefed the Commission on the process and results of the facilitation and presented a synoptic overview of the substantive regulatory provisions being recommended for proposal by staff to address both the consensus issues that emerged from the facilitation and additional regulatory components necessary to operationalize consensus decisions, as well as other regulatory components deemed necessary but on which there was no consensus.

In addition to the facilitated process, the new rules are also a result of extensive cooperation between the department and 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).

Regulatory Authority

Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for better wildlife management (popularly referred to as "Triple T" permits). In addition, the department may issue permits authorizing the trapping, transporting and processing of surplus white-tailed deer (popularly referred to as TTP permits) and permits for the removal of urban white-tailed 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. A deer breeder permit affords deer breeders certain privileges, such as (among other things) the authority to buy, sell, transfer, lease, 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, transferred, leased, or received 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.

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 propagation 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 the department regulations authorize the introduction of a deer from a deer breeding facility into a DMP facility for propagation. Deer breeders are permitted under Parks and Wildlife Code, Chapter 43, Subchapter L and 31 TAC Chapter 65, Subchapter T.

Background Regarding CWD

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 variant Creutzfeldt-Jakob Disease (vCJD) in humans. 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, although the department in this rulemaking proposes to allow certain ante-mortem tests to be valid.

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 to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either farmed or free-ranging cervid populations. 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.

Discovery of CWD

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 50,000 "not detected" CWD test results have been obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted approximately 20,000 "not detected" test results as well. The intent of the proposed new rules is to reduce the probability of CWD being spread from facilities where it might exist and to increase the probability of detecting and containing CWD if it does exist.

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. Under the provisions of the Agriculture Code, §161.101(a)(6) CWD is a reportable disease and requires a veterinarian, veterinary diagnostic laboratory, or person having care, custody, or control of an animal 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, was also confirmed to have a CWD positive white-tailed deer acquired from the index facility.

Heightened testing requirements resulted in additional discoveries. A total of 10 white-tailed breeder deer have now been confirmed positive at four facilities (including the index facility). A total of four CWD positive deer were found in the in the index facility. Three CWD positive deer that originated from the index facility were discovered in the Lavaca County facility. A CWD positive deer was harvested from a Medina County release site and another CWD positive deer was sampled in the associated Uvalde County breeding facility located on the same ranch. While the Uvalde County breeding facility is epidemiologically linked to the index facility, neither positive deer at this location originated from the index facility. More recently, another CWD positive deer was reported in a Medina County deer breeding facility and a free-ranging hunter-harvested mule deer in Hartley County was confirmed to have CWD.

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 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. The 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.

In response to the first discovery of CWD in a deer breeding facility in Medina County, the department adopted emergency rules on August 18, 2015 (40 TexReg 5566) to address deer breeding facilities and release sites for breeder deer. The department followed the emergency rulemaking with the "interim" rules that are proposed for repeal as part of this rulemaking, which were published for public comment in the October 2, 2015, issue of the Texas Register, adopted by the Commission on November 5, 2015, and published for adoption in the January 29, 2016, issue of the Texas Register (41 TexReg 815).

The department also adopted emergency rules governing DMP and Triple T activities (effective October 5, 2015, published in the October 23, 2015, issue of the Texas Register (40 TexReg 7305, 7307) and followed with interim DMP rules published for public comment in the December 18, 2015, issue of the Texas Register (40 TexReg 9086), adopted by the Commission on January 21, 2016, and published for adoption in the February 19, 2016, issue of the Texas Register (41 TexReg 1250).

Consensus Rule Components

As mentioned previously, the proposed new rules contain provisions that represent a consensus resulting from facilitation. Early in the facilitation process, representatives of the regulated community stated that two important goals for the regulatory community were that new rules allow live-animal testing and that the new rules allow for the transfer of breeder deer without requiring testing at the release site. At a subsequent facilitation meeting, stakeholders suggested the creation of several regulatory components, the most important of which was the creation of four new subcategories of "TC 1" deer breeding facilities (in the rubric of the interim rules, those facilities representing the least amount of risk of spreading CWD), each with a different testing regime. The proposed TC 1 testing regime would allow ante-mortem testing, and would allow the transfer of breeder deer without requiring CWD testing at the release site. After extended discussion and refinement over the remaining facilitation meetings, all stakeholders agreed that the structure was suitable for attaining the goals of both the regulated community, the other stakeholders, and the department.

The major consensus provisions emerging from the facilitation process are:

1. TC 1 breeding facility testing plans which require no release site testing for recipients of breeder deer;

2. The requirements for TC2 breeding facilities and Class II release sites;

3. The requirements for TC 3 breeding facilities and Class III release sites;

4. Standards for valid ante-mortem testing;

5. Standards for post-mortem testing;

6. The definition for "eligible-aged deer" to provide for breeder deer 12 months and older, provided the breeding facility is enrolled in the TAHC Herd Certification Program;

7. The stipulation that breeding facilities and release sites that accept breeder deer assume the lowest facility status of all originating facilities;

8. The provisions allowing breeding facilities to maintain MQ authorization or facility status by making up for missed tests;

9. The allowance of ante-mortem tests to be submitted in lieu of post-mortem tests;

10. Stipulation that failure to test a release site make the site ineligible for future releases;

11. Testing requirements for DMP sites;

12. Testing requirements for Triple T and TTP permits;

13. Testing requirements at Triple T release sites;

14. Tagging requirements for Class III release sites; and

15. Testing requirements and prohibitions for release sites that failed to comply with the interim rules and release sites that fail to comply with the new rules.

Non-consensus Rule Components

The stakeholders at the facilitation were unable to reach consensus on the following:

1. The release of breeder deer to sites not surrounded by a 7-foot high fence; which is a provision of the interim rules and which the department has retained in the proposed new rules.

2. Standardized ear tagging requirements were a part of the stakeholder discussions. There was no consensus on this issue nor do the proposed rules prescribe a change to the standard for ear tagging requirements for all breeder deer, with the exception of Class III release sites.

Description of the Rules

Definitions

Proposed new §65.90, concerning Definitions, would set forth the meanings of specialized words and terms in order to eliminate ambiguity and enhance compliance and enforcement.

Proposed new §65.90(1) would define "accredited testing facility" as "a laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD." The definition is necessary in order to provide a standard for testing facilities.

Proposed new §65.90(2) would define "ante-mortem" testing as "a CWD test performed on a live deer." The definition is necessary because the proposed new rules allow or require ante-mortem testing in addition to post-mortem testing.

Proposed new §65.90(3) would define "breeder deer" as "a white-tailed deer or mule deer possessed under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter." The definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

Proposed new §65.90(4) would define "confirmed" as "a CWD test result of "positive" received from the National Veterinary Service Laboratories (NVSL) of the United States Department of Agriculture." The definition is necessary in order to provide a definitive standard for asserting the presence of CWD in a sample. Samples collected from breeder deer are sent initially to an accredited testing facility, such as the Texas Veterinary Medical Diagnostic Laboratory (TVMDL). A test result of "suspect" is returned when CWD is detected, and a tissue sample is forwarded to the NVSL for confirmation.

Proposed new §65.90(5) would define "CWD" as "chronic wasting disease." The definition is necessary to provide an acronym for a term that is used repeatedly in the rules.

Proposed new §65.90(6) would define "CWD-positive facility" as "a facility where CWD has been confirmed." The definition is necessary because the proposed new rules contain provisions that are predicated on whether or not CWD has been detected and confirmed in a given deer breeding, DMP, nursing, or other facility authorized to possess white-tailed deer or mule deer.

Proposed new §65.90(7) would define "deer breeder" as "a person who holds a valid deer breeder's permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter." As with several other definitions in the proposed new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

Proposed new §65.90(8) would define "deer breeding facility (breeding facility)" as "a facility permitted to hold breeder deer under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter." As with several other definitions in the proposed new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

Proposed new §65.90(9) would define "department (department)" as "Texas Parks and Wildlife Department." The definition is necessary to avoid confusion, since the proposed new rules contain references to another state agency.

Proposed new §65.90(10) would define "Deer Management Permit (DMP)" as "a permit issued 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)) that authorizes the temporary detention of deer for propagation purposes. The proposed new rules would regulate certain aspects of activities conducted under a DMP and a definition is necessary to avoid any confusion as to what is meant by the term.