The Texas Parks and Wildlife Commission in a duly noticed meeting on March 20, 2019, adopted an amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, with changes to the proposed text as published in the February 15, 2019, issue of the Texas Register (44 TexReg 681).

The change alters subsection (f) to clarify that the provisions of that subsection are an exception to the testing provisions of §65.92(b)(2), which stipulate that an ante-mortem CWD may not be performed on the same deer more frequently than once every 24 months, which is necessary to prevent unintended conflicts with the general testing provisions set forth in the division.

The change also alters subsection (f)(4) to clarify that the herd inventory inspection required as a precondition for whole-herd ante-mortem testing must have been conducted no more than 12 months prior to the initiation of testing. The preamble to the proposed rule stated that testing could begin "no earlier than 12 months following the department designating NMQ status for the facility and completing a herd inventory inspection." The change makes that distinction clear.

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 testing 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 options 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.

The amendment allows 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 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 amendment also allows the department, following a facility's compliance with the provisions of 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 is required to contain the specific rationale supporting the recommendation. The amendment also allows 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.

The department received one comment opposing adoption of the proposed rule. The commenter opposed adoption and stated that the rule as proposed does not account for the different circumstances that may cause a facility to have an insufficient number of animals for ante-mortem testing, such as anthrax, massive flooding, hurricanes and other acts of God. The department disagrees with the comment and responds that the rule as adopted is intended to assist deer breeders currently (as opposed to hypothetically) in the position of having too few animals to test, irrespective of how the insufficiency came to pass.

The department received 14 comments supporting adoption of the proposed rule.

The Texas Wildlife Association and the Deer Breeder Corporation commented in support of adoption of the proposed rule.

The Texas Deer Association commented against adoption of the proposed rule.

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