The Texas Parks and Wildlife Department proposes amendments to §§65.81, 65.82, 65.85, 65.88, and 65.94, concerning Disease Detection and Response. The proposed amendments are intended to replace emergency rules affecting Subchapter B, Division 1 adopted on January 26, 2017 (42 TexReg 531) and to alter the "comprehensive CWD management rules" (Subchapter B, Division 2) adopted in 2016 (41 TexReg 5726).

Chronic wasting disease (CWD) is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as 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. What is known is that CWD is invariably fatal to certain species of cervids, and is transmitted both directly (through animal-to-animal 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 indicates that hunters will avoid areas of high CWD prevalence. If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion dollar ranching, hunting, wildlife management, and real estate economies could be significant.

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 published in the Texas Register (35 TexReg 252)).

On July 10, 2012, the department confirmed that two mule deer sampled in the Texas portion of the Hueco Mountains in far west Texas tested positive for CWD. In response, the department adopted rules (Subchapter B, Division 1) in 2013 (37 TexReg 10231) to implement a CWD containment strategy in that area. Those rules established a system of zones within which the movement of live deer under department permits (Deer Breeder Permit (DBP), Permit to Trap, Transport, and Transplant Game Animals and Game Birds (popularly called the "Triple T" permit, and Deer Management Permit (DMP)) is restricted, and required deer harvested in specific geographical areas to be presented at check stations to be tested for CWD. In 2016, those rules were modified (41 TexReg 7501) in response to additional CWD discoveries in the Texas Panhandle and Medina County, creating additional Surveillance Zones (SZs) and an additional Containment Zone (CZ) in West Texas.

In June of 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, which was followed by positive test results for white-tailed deer in three additional deer breeding facilities. 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 has not been determined. In response, the department first adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, then developed interim rules (41 TexReg 815) intended to function through the 2015-2016 hunting season until permanent rules could be developed. Working closely with the Texas Animal Health Commission (TAHC), the regulated community, and key stakeholders, and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department developed the "comprehensive CWD management rules" (Subchapter B, Division 2), adopted in 2016 (41 TexReg 5726). The comprehensive CWD management rules address the movement and consequences of movement of live deer under various department-issued permits (DBP, Triple T, and DMPs). Concurrently, the department engaged in rulemaking affecting Subchapter B, Division 1 (41 TexReg 7501) to create additional SZs and a CZ, including SZ 3, which affects a portion of Bandera, Medina, and Uvalde counties. A CZ was not established in this area because the department was approached by concerned county officials and landowners in Medina County who committed to organizing a volunteer hunter and landowner effort to provide the department with a sufficient number of valid "not detected" CWD test results, which would allow the department to make an epidemiologically sound determination about the prevalence (if any) of CWD within the SZ. In choosing to forgo the creation of a CZ, the department considered that CWD had not been encountered in free-ranging deer in that area, that deer breeding facilities by their nature are designed and built to prevent contact between captive deer and free-ranging deer (which is also prohibited by rule), and that breeding facilities where CWD was discovered were operating under TAHC herd plans, which restrict deer movement and require CWD testing at a level equal to or greater than that required in a CZ. The amendment to §65.88, concerning Deer Carcass Movement Restrictions, also exempted SZ 3 from the applicability of the provisions of that section that imposed mandatory check station and carcass movement restrictions.

On January 24, 2017, the department received confirmation that a 1.5-year-old male white-tailed deer harvested by a hunter within SZ 3 in Medina County during the 2017-2018 hunting season had tested positive for CWD. The deer was free-ranging and was harvested on a low-fenced property. There is currently no evidence that the deer was a deer liberated from a deer breeding facility and the harvest site has not been a release site for breeder deer or deer under any other department-administered permit programs. Prior to this discovery, CWD discoveries in this part of the state occurred only in deer breeding facilities and their associated release sites.

As a result of the detection of CWD in a free-ranging white-tailed deer, consistent with epidemiological science and in consultation with TAHC, the department determined that prompt action to contain CWD in this area was necessary in order to protect species managed by the department and thus adopted emergency rules to create a CZ in a portion of Medina, Bandera, and Uvalde counties. The proposed amendments would replace the emergency rules.

The proposed amendment to §65.81, concerning Containment Zones; Restrictions, would create a CZ in a portion of Bandera, Medina, and Uvalde counties. A CZ is a specific location in which CWD has been detected or the department has determined, using the best available science and data, that CWD detection is probable. With respect to the CZ that would be established by this rulemaking, the department in consultation with TAHC determined that for any given deer breeding facility or release site where breeder deer have been released and CWD has been discovered, the highest probability for detecting CWD that might have spread from that property is within approximately two miles of the property boundary. For a location at which CWD has been detected in a free-ranging white-tailed deer, the highest probability of detection would be within approximately a five-mile radius from the approximate location where the deer was harvested. Contact (and therefore, the potential for disease transmission) between free-ranging deer is more problematic than contact between captive deer in a breeding facility, since by definition a free-ranging deer is limited for the most part only by the biological range of movement typical for deer in that area of the state.

For purposes of legal precision, the proposed amendment describes the perimeter of the CZ in Bandera, Medina, and Uvalde counties by latitude-longitude coordinate pairs. The department notes that although the CZ designation imposes mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer, it is not necessary for hunters to be aware of or concerned with CZ boundaries, since the CZ is wholly within an SZ where mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer also apply. The SZ is delineated by easily recognizable roadway and river boundaries. The CZ designations affect only persons and properties within the CZ where deer are possessed pursuant to permits issued by the department; thus, although the exact boundary of the proposed CZ 3 is discernable to anyone using latitude-longitude coordinate pairs, the department is able to communicate directly with affected persons to make them aware of the rules' implementation. The department also notes that it will undertake an intensive outreach effort to inform the public.

The proposed amendment to §65.81 also would stipulate that if any portion of a deer breeding facility or release site is within a CZ, the entirety of the deer breeding facility or release site is considered to be in the CZ and subject to CZ restrictions. Because CWD is known to be spread by both physical and environmental vectors, it is necessary, from an epidemiological perspective, to ensure that the totality of any environment that could have been exposed to CWD be captured by the CZ designation.

The proposed amendment to §65.81 would differ from both the current rules and the emergency rules that it replaces by liberalizing restrictions on the movement of breeder deer within the CZ. Under both the current rules and the emergency rules, the movement of breeder deer within a CZ is prohibited, except for deer breeding facilities with Transfer Category 1 (TC 1) status, which are allowed to release breeder deer to adjoining acreage if that acreage is also owned by the permittee (under Subchapter B, Division 2, deer breeding facilities obtain deer movement privileges based on CWD testing performance, with TC 1 representing the highest relative confidence that CWD is not present and TC 3 the lowest). Under the amendment as proposed, deer breeding facilities with TC 1 status located within a CZ would be allowed to transfer or release breeder deer anywhere within the CZ (but not beyond the CZ). Deer breeding facilities with TC 2 status would be allowed to release breeder deer to adjoining acreage, provided that acreage is owned by the deer breeder and every deer released has had a tonsil biopsy test for CWD with a result of "not detected" no more than 60 days prior to release.

The proposed amendment to §65.81 would allow breeder deer to be released within the CZ, provided the harvest at the release site is at a ratio of one deer per breeder deer released and the owner of the release site maintains a harvest log and reports that harvest to the department. The department believes that deer movements resulting in an increased number of potential hosts for CWD should not be authorized. By requiring one deer to be harvested for every deer released, the proposed provision would allow the movement of deer believed to be free of CWD while creating a zero-sum result in the number of potential disease hosts on the landscape. Under current rules, TC 2 deer breeding facilities in a SZ may receive deer from any deer breeding facility in the state and transfer or release breeder deer within the SZ, but are prohibited from transferring breeder deer outside the SZ. Also under current rules, TC 2 facilities in a CZ are prohibited from moving breeder deer under any circumstances. The department also believes that it is necessary that an assessment and reporting function be implemented in order to allow the department to verify that persons who receive breeder deer from outside the CZ are complying with the provisions of the proposed subparagraph.

The proposed amendment to §65.82, concerning Surveillance Zones; Restrictions, would alter SZ 2 and SZ 3. The alteration to SZ 2 would slightly increase the size of the SZ by extending its borders to include the cities of Dumas and Amarillo. The department has become aware that there are several taxidermists and processing facilities in Dumas and Amarillo that are just outside the current SZ, which means that deer harvested within the SZ legally cannot be taken to those locations because of carcass movement restrictions. Including the cities of Dumas and Amarillo will increase the number of taxidermists and processors available to hunters. The alteration to SZ 3 would slightly increase the size of SZ 3 by extending the western boundary to the Sabinal River. As noted previously in the discussion of the proposed amendment to §65.81, the department is creating a CZ in a portion of Bandera, Medina, and Uvalde counties, based on a distance of two miles from the boundaries of properties where CWD has been detected in deer breeding facilities and five miles surrounding locations where CWD has been detected in free-ranging deer. Consequently, the SZ surrounding the CZ must be extended, and the department has determined that extending it to the Sabinal River provides an easily recognized boundary for purposes of enforcement and compliance. The proposed amendment also would clarify that breeder deer from a deer breeding facility located outside a SZ may be released within a SZ.

The proposed amendment to §65.85, concerning Mandatory Check Stations, would increase the time period within which harvested deer must be presented at a mandatory check station for tissue sample collection for CWD testing, from 24 hours to 48 hours following harvest. In the Panhandle and far west Texas, hunters are sometimes a significant distance from the nearest check station, and because the typical hunting trip is multi-day and can result in the harvest of more than one deer, the department is persuaded that increasing the time period to 48 hours will provide convenience to hunters and land managers while posing little threat to sample viability. Rather than causing possible confusion by having a differential standard in different parts of the state, the department believes the 48-hour standard is best applied to all areas designated as a CZ or SZ. The proposed amendment also would eliminate subsection (f), which exempted SZ 3 from carcass movement restrictions and mandatory check stations. When SZ 3 was created, the department was approached by local officials who requested that the mandatory check station and carcass movement restrictions not be implemented in SZ 3 while a voluntary effort to provide samples was attempted. The department agreed to the request, reasoning that CWD had been detected only in permitted deer breeding facilities and sites where breeder deer had been released, all of which were issued TAHC hold orders that included surveillance requirements for all hunter-harvested deer. With the discovery of CWD in a free-ranging deer, however, the department finds that it is imperative to implement the mandatory check station and carcass movement restrictions in order to determine the extent and spread of CWD in free-ranging populations.

The proposed amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, would create a mechanism for TC 1 deer breeding facilities to temporarily retain that status in the event that an accredited testing laboratory were to lose or misplace test samples in a number that could result in such facilities being noncompliant and therefore automatically lowered in status. The amendment would provide a 45-day period following the end of the permit year for qualifying deer breeders to submit the necessary test samples to replace lost samples.

Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of disease management activities will administer and enforce the rules as part of their current job duties and resources.

Mr. Wolf also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduction of the probability of CWD being spread from facilities and locations where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

There will be adverse economic impact on persons required to comply with the rules as proposed. For deer breeders, those impacts are the same as the adverse economic impacts to small and microbusinesses, which are addressed later in this preamble.

Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small businesses. These guidelines state that "generally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency's regulatory jurisdiction." The guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a "direct economic impact." Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.