The Texas Parks and Wildlife Commission in a duly noticed meeting on November 10, 2020, adopted an amendment to 31 TAC §65.92, concerning CWD Testing, without changes to the proposed text as published in the October 2, 2020, issue of the Texas Register (45 TexReg 6962). The rule will not be republished.

The amendment requires permitted deer breeders to report all mortalities of breeder deer possessed in a breeding facility within 14 days of detection and to submit all CWD test samples to an accredited testing laboratory within 14 days of collection.

Prior to 2015, the department's regulatory apparatus for detecting chronic wasting disease (CWD) in captive deer was contained in various subchapters regulating various permits that authorize the holding of deer in captivity. The testing standards imposed by the rules were considered to be at best minimally efficacious for detecting CWD in captive deer populations and were intended to be the least burdensome regulatory footprint possible in light of the fact that up to that point in time, CWD had not been discovered in captive breeding facilities in Texas. However, with the discoveries of multiple CWD-positive deer in deer breeding facilities in 2015 and 2016, the department adopted rules that imposed significantly more robust testing protocols and movement restrictions. Those rules are contained in Chapter 65, Subchapter B, and supersede the testing rules contained in Chapter 65, Subchapter T.

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.

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 declines, 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.

It is imperative that deer mortalities within a breeding facility be reported promptly for inventory reconciliation, which is necessary for the department to be able to quickly initiate contact tracing in the event of an epidemiological investigation. Prompt submission of CWD samples aids in early detection of the disease where it exists, which reduces the probability of CWD being transferred from a CWD-positive deer breeding facility to other deer breeding facilities or release sites. Additionally, prompt submission of CWD samples is recommended by accredited diagnostic testing laboratories. The amendment is intended to provide assurances that reporting and testing protocols are optimal.

The department received three comments opposing adoption of the proposed amendment. The commenters stated that 30 days or 60 days was a more feasible time period for the submission of tissue samples because a 14-day limit is problematic for people who need to find veterinarians or sample collectors on short notice, people who live far from a town, those who wish to personally deliver their samples, and individuals who don't live near a facility but are responsible for transporting samples to a lab. The commenters also stated that 14 days is problematic because permit holders prefer to hand-deliver tissue samples in order to avoid the possibility of samples being lost in transit. One commenter stated that the rules should stipulate that the time period for sample submission should begin with the postmarked date of samples, not on the date test results are obtained. The department disagrees with the comments and responds that because the efficacy of disease management strategies is dependent to a large extent on the quality and immediacy of the data upon which decisions are based, the intent of the rule is to ensure that the department receives the greatest number of viable test results in as close to real time as is reasonably possible. If CWD is present within a facility, the longer it takes for the department to know about it, the more problematic the task of protecting a public resource becomes. The department also responds that because all towns in Texas and all accredited testing laboratories are easily within a two-day drive from any point in the state, on that basis the department does not believe the 14-day time period presents a hardship. The department also responds that although it understands that mortalities and subsequent testing obligations are not predictable events, 14 days is sufficient time to locate a qualified person to remove, prepare, and submit a sample. No changes were made as a result of the comments.

The department received five comments supporting adoption of the proposed amendment.

The Texas Chapter of The Wildlife Society, the Texas Wildlife Association, the Texas Foundation for Conservation, the Texas and Southwestern Cattle Raisers Association, and the Humane Society of the United States commented in favor of adoption of the proposed rule.

The Texas Deer Association and the Deer Breeder Corporation 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, sale, of breeder deer held under the authority of the subchapter.