In a duly noticed meeting on May 25, 2017, the Texas Parks and Wildlife Commission adopted amendments to §§65.81, 65.82, 65.85, 65.88, and 65.94, concerning Disease Detection and Response. Sections 65.81, 65.82, and 65.94 are adopted with changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2135). Sections 65.85 and 65.88 are adopted without change and will not be republished.

The change to §65.81, concerning Containment Zones; Restrictions, adds a map to the provisions of paragraph (1)(C) to provide a visual reference to the boundaries of Containment Zone (CZ) 3 in addition to the proposed boundary description consisting of latitude/longitude coordinate pairs, which is intended to provide additional guidance to the regulated community. The change also clarifies the provisions of paragraph (2)(F) by replacing the phrase "share the same ownership" with the phrase "title in the county deed record reflects that the surface of the release site and of the breeding facility is held by the same owner or owners," which is necessary to be more technically precise. Additionally, the change alters paragraph (2)(H) to clarify that the subparagraph’s requirement for Movement Qualified designation under Division 2 of the Subchapter B is in addition to and does not preclude the need to comply with the provisions of Division 1 of Subchapter B, and identifies the specific penalty provisions of the Parks and Wildlife Code and the Texas Administrative Code to which a violation of subparagraph (H) is subject, which the department intends for purposes of ease of reference.

The change to §65.82, concerning Surveillance Zones; Restrictions, clarifies paragraph (2)(B) by adding a reference to the rules contained in Chapter 65, Subchapter B, Division 2, which contains various regulations affecting the movement of deer under deer breeder permits. The purpose of the change is to ensure that the regulated community is aware that other rules in Chapter 65 affect the movement of deer under a deer breeder permit.

The change to §65.94, concerning Breeding Facility Minimum Movement Qualification, alters subsection (c) to extend the deadline for submission of test samples and re-words provisions regarding the conditions under which the department will allow ante-mortem test samples to be submitted in the event that a testing laboratory loses chronic wasting disease (CWD) samples needed to maintain TC 1 facility status. As proposed, the provision stipulated that if by March 31 of any year a laboratory lost tissue samples necessary for a TC 1 facility to maintain TC 1 facility status, the facility could submit ante-mortem replacement tissue samples by May 15 and, provided sufficient "not detected" results were obtained, retain TC 1 facility status. The department received a question from the regulated community regarding a scenario in which initial samples are submitted to a laboratory on March 31 but the notification of lost samples isn’t received until after the May 15 deadline for the submission of substitute samples. The change re-words the provision to account for that scenario, stipulating that if a breeding facility that has obtained TC 1 status is unable to satisfy the criteria of this subchapter necessary to maintain TC 1 status by March 31 of any year solely because tissue samples have been documented by an accredited testing facility as having been received and lost, the breeding facility status will be reduced to TC 2 status unless ante-mortem substitution samples necessary to maintain TC 1 status are submitted to an approved diagnostic laboratory by the latter of the following: May 15 immediately following notification to the breeder by the accredited testing facility that the tissue samples have been lost or 30 days after the date on which the breeder is notified by the accredited testing facility that the tissue samples have been lost, provided, of course, that the required number of "not detected" test results are obtained from the ante-mortem substitute samples submitted to satisfy the requirements for TC 1 facility status.

The 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).

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 (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 four 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 affected 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 issued a quarantine or hold order by TAHC, 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 amendments adopted in this notice replace the emergency rules.

The amendment to §65.81, concerning Containment Zones; Restrictions, creates 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 established by this rulemaking, the department in consultation with TAHC has 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.

For purposes of legal precision, the amendment describes the perimeter of the CZ in Bandera, Medina, and Uvalde counties by latitude-longitude coordinate pairs. As discussed earlier in this preamble, §65.81 is adopted with a change that includes a map for additional guidance. 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. SZ 3 is delineated by easily recognizable and well-known 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 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 amendment to §65.81 also stipulates 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 amendment to §65.81 differs 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 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). The amendment allows deer breeding facilities with TC 1 status located within a CZ to transfer or release breeder deer to any permitted or registered facility with Movement Qualified (MQ) status 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 title in the county deed records reflects that the surface of the release site and of the breeding facility is held by the same owner or owners 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 amendment to §65.81 also required harvest at registered release sites to be at a ratio of one deer per breeder deer released since the previous hunting season, 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 at low relative risk for CWD while creating a zero-sum result in the number of potential disease hosts on the landscape. The department also believes that it is necessary that an assessment and reporting function be implemented by requiring a harvest log in order to allow the department to verify that persons who release breeder deer within a CZ are complying with the provisions of the proposed subparagraph.

The amendment to §65.82, concerning Surveillance Zones; Restrictions, alters the boundaries of both 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 taxidermists and processing facilities in Dumas and Amarillo that are just outside the current SZ, which means that whole carcasses of deer harvested within the SZ legally cannot be taken to those locations without being noncompliant with the 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 extend a segment of the western boundary westward to the Sabinal River. As noted previously in the discussion of the 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 recognizable boundary for purposes of enforcement and compliance. The amendment also clarifies that breeder deer from a deer breeding facility located outside a SZ may be released within a SZ.

The amendment to §65.85, concerning Mandatory Check Stations, increases 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 amendment also eliminates current 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 a TAHC quarantine or hold order 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.