The Texas Parks and Wildlife Department (the department) proposes an amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification.

Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of white-tailed and mule deer under deer breeding permits issued by the department.

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 (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. Although CWD remains under study, it is known to be invariably fatal to certain species of cervids (including both species of deer native to Texas), and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). 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. To that end, the department has engaged in a number of rulemakings since 2012 to address the threat of CWD by implementing a comprehensive management strategy.

In 2016, the department promulgated rules to implement a CWD surveillance strategy intended to reduce the likelihood of transmission of CWD from, among other sources, deer breeding facilities. Those rules (still in effect) allow facility owners to substitute ante-mortem (live animal) test results for post-mortem test results to maintain or regain the ability to receive and transfer deer (referred to in the rules as "Movement Qualified," or "MQ status") in the event that post-mortem sampling intensity falls below the minimum established in the rules. The rules also establish minimum age requirements for deer to be eligible for testing, which is based on veterinary and epidemiological thresholds for test efficacy. The department is aware that there are several facilities that did not test the minimum number of eligible-aged mortalities, or at least 3.6 percent of the eligible aged population in the breeding facility, to maintain MQ status and currently do not have a sufficient number of eligible-aged animals to ante-mortem test in order to regain MQ status. Moreover, some of those facilities will never be able to obtain MQ status because it is mathematically impossible for them to ever have enough eligible-aged animals for CWD testing at the level necessary to achieve sufficient confidence that CWD would be detected if present, which is problematic because it leaves no option other than euthanization of all animals in possession or waiting until natural mortality occurs for the entire herd, which can be quite costly to the permitted deer breeder.

After considering recommendations of the department's Breeder User Group and CWD Task Force, staff propose to allow permittees who possess an insufficient number of eligible-aged deer to potentially obtain MQ status for a facility by subjecting all eligible-aged deer to two rounds of ante-mortem testing at an interval of at least 12 months (beginning no earlier than 12 months following the department designating NMQ status for the facility and completing a herd inventory inspection), provided the facility has not received any exposed breeder deer (breeder deer that have been in a facility where CWD has been detected within the previous five years), there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory on file with the department, and all CWD test results are "Not Detected." The proposed amendment also includes provisions to account for testing of deer that are not old enough to be tested when testing begins within a facility but become eligible-aged during the 12-month testing interval and deer that do not reach eligible age during the 12-month testing interval, which is necessary to prevent affected facilities from an infinite regress scenario where the continual appearance of fawns makes compliance with the proposed amendment impossible. The department, after consultation with Texas Animal Health Commission (TAHC) and review of the best available data regarding the efficacy of ante-mortem testing modalities, has concluded that whole-herd ante-mortem testing at an interval of at least 12 months in most cases will provide the department with confidence that CWD is not present in a given population. However, there are circumstances that could arise to create unique situations in which whole-herd testing events 12 months apart might not provide the desired epidemiological confidence. Therefore, the proposed amendment also would allow the department, following a facility's compliance with the provisions of proposed subsection (f), to decline to designate that facility as MQ upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation would be required to be in writing and would be required to contain the specific rationale supporting the recommendation. The proposed amendment also would allow the department to include in the recommendation any specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation, following which the facility could be designated MQ.

Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the amendment as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

Mr. Lockwood also has determined that for each of the first five years that the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be additional regulatory flexibility for the regulated community and a pathway for certain deer breeding facilities that otherwise would not be permitted to transfer deer to gain that ability.

There will be no adverse economic effect on persons required to comply with the rule as proposed, as the proposed rule would not be mandatory, but at the discretion of the regulated community.

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, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small businesses. Those 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. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

The department has determined that the rule will not result in adverse economic impacts to small businesses, micro-businesses, or rural communities because it creates a voluntary pathway for deer breeders who are otherwise prohibited from transferring deer to gain the status to do so. A member of the regulated community who does not wish to utilize that pathway would not be required to do so and would be able to pursue other options. On that basis, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, would: neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; would create a new regulation (by creating an additional testing regimen that would allow certain deer breeders to achieve MQ status); expand an existing regulation by creating additional testing options, but would not limit, or repeal an existing regulation; neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Mitch Lockwood at (512) 389-4363, e-mail: mitch.lockwood@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter.

The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter L.