The Texas Parks and Wildlife Commission in a duly noticed meeting on November 4, 2021, adopted the repeal of 31 TAC §65.99, amendments to §§65.80 - 65.83, 65.88, 65.90 - 65.98, and new §65.99 and §65.100, concerning Disease Detection and Response. Sections 65.83, 65.90 - 65.95, and 65.97 - 65.99 are adopted with changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 TexReg 6507). The rules will be republished. Sections 65.80 - 65.82, 65.88, 65.96, and 65.100, and the repeal of §65.99, are adopted without changes and will not be republished.

The rules impose new testing requirements for deer breeding facilities and incorporate the provisions of an emergency rule adopted on June 22, 2021 (46 TexReg 3991) in response to multiple detections of chronic wasting disease (CWD) earlier this year in additional deer breeding facilities. The intent of the rules is to reduce the probability of CWD being spread from facilities where it exists and to increase the probability of detecting and containing CWD.

The change to proposed §65.83, concerning Special Provisions, adds language to paragraph (3) to stipulate that in addition to the breeding facility that is the source of deer released to adjoining acreage within a surveillance or containment zone designated by the department, the adjoining acreage itself must also be in compliance with the testing provisions of the subchapter. The current rules governing deer movement by deer breeders within surveillance and containment zones are predicated on the assignment of various categorical distinctions related to disease risk. Those distinctions are no longer necessary and one of the goals of the rules as proposed is to eliminate references to and provisions regarding them in the interests of removing regulatory language that is no longer relevant. In the process, the rule as proposed inadvertently omitted a reference to disease-testing requirements on release sites adjoining breeding facilities. The change remedies that oversight.

The change to §65.90, concerning Definitions, adds language to paragraph (11)(C) to clarify that the definition applies to the history of a deer's residency and not solely to the present location of residence. The change is nonsubstantive and necessary to maintain parallel construction with the language in subparagraphs (A) and (B). The change also adds a new definition for "Trace-in breeding facility." Under current rule §65.95(b)(3), a Transfer Category 3 (TC 3) facility is a breeding facility that has within the previous five years received deer from a CWD-exposed facility, transferred deer to a CWD-positive facility, or possessed deer that were in a CWD-positive facility. These facilities present the highest risk of being a mechanism for transmitting CWD to other breeding facilities and free-ranging deer population. The rules as proposed subsume these facilities under the rubric of "trace" facilities - breeding facilities that have been epidemiologically connected to other breeding facilities where CWD has been discovered ("CWD-positive facilities" or "positive facilities") and prescribe disease management standards for those facilities. As noted previously, one of the goals of the rules as proposed was to "clean up" the division by removing regulatory provisions that are no longer relevant, primarily concerning defunct categories related to transfer and release requirements for breeding facilities. The proposal preamble stated the department's intent in the proposed amendment to §65.99 to "set forth provisions that would apply to those deer breeding facilities that epidemiological investigations reveal are connected to positive facilities, either directly or indirectly." In the process of preserving the provisions of current rule regarding deer movements involving TC 3 facilities within the proposed provisions governing trace facilities, the department identified "trace-out" facilities (facilities that received deer from a positive facilities) and inadvertently failed to preserve the contents of current §65.95(b)(3)(ii), which addresses facilities that transferred deer to a positive facility. The change adds new paragraph (39) to remedy that oversight and alters references as necessary to accommodate the change.

The change to §65.91, concerning General Provisions, adds language to comport the provisions of subsection (c) with provisions of current rules that allow the transfer of deer to or from TC 3 facilities under a herd plan, for the same reasons set forth in the discussion of changes regarding trace-in facilities. The change also implements redesignations as necessary to accommodate changes made to §65.99 regarding trace-in facilities as noted elsewhere in this preamble.

The change to §65.92, concerning CWD Testing, adds language to subsection (d) to clarify that the limitations on the use of ante-mortem testing provided by the subsection apply only to the use of ante-mortem test results to substitute for missed mortalities and does not apply to the use of ante-mortem testing to satisfy the minimum annual testing standards established in §65.94(a)(1)(C). The annual testing requirements establish the minimum statistical basis for assurance that continuous efficacious disease monitoring is occurring, while the provisions allowing the substitution of ante-mortem test results are intended only to provide an acknowledgment that a mortality may be missed under extraordinary circumstances.

The change to §65.93, concerning Harvest Log, alters subsection (b)(5) to replace the word "any" with the word "the" to reflect the change in case created by the removal of references to NUES tags.

The change to §65.94, concerning Breeding Facility Minimum Movement Qualification, adds language to subsection (a)(1)(B) to clarify that the testing requirement imposed by the provision is an annual requirement, not a cumulative requirement. Under current rule, this intent is clear; however, the language of the rule as proposed could be construed to mean having tested 80% of eligible mortalities across the life of the permit is sufficient, which is not the case. The change also removes subsection (d)(5)(B), which the department has determined is now superfluous in light of the provisions of the rules as adopted that lower the test-eligible age for breeder deer from 16 months of age to 12 months of age. Additionally, and for reasons identified earlier in this preamble, the change adds language to subsection (g) to clarify that the limitations on the use of ante-mortem testing provided by the subsection apply only to the use of ante-mortem test results to substitute for missed mortalities and does not apply to the use of ante-mortem testing to satisfy the minimum annual testing standards established in §65.94(a)(1)(C).

The change to §65.95, concerning Movement of Breeder Deer, adds language to subsection (a)(2) to comport with style requirements and to subsection (b)(5) in the interests of precision to clarify that the provisions of the paragraph apply to any deer received from a CWD-positive facility rather than just to positive deer. The provision establishes documentation requirements for release sites where deer from breeding facilities epidemiologically linked to CWD-positive facilities have been released, which would include exposed deer in addition to positive deer. The change also adds clarifying language to paragraph (6) to reflect changes made elsewhere to provisions governing the use of ante-mortem test results. Additionally, the change adds language to ensure that in addition to any testing requirements imposed by the department at a breeding facility pursuant to the section, the testing requirements at release sites must be met as well in order to have Movement Qualified (MQ) status restored. It is axiomatic that deer at the places where breeder deer from trace and positive facilities have been released should be sampled to determine if the releases have spread CWD to new environments. Finally, the change imposes a three-year period of effectiveness for the provisions of paragraph (6). The department has determined that ante-mortem pre-release testing of breeder deer is necessary to detect CWD where it currently exists and in the event that a continuation of ante-mortem pre-release testing is necessary to further the department's disease management strategies, that decision should be made through future rulemaking by the commission. The change also makes necessary redisignations of internal references.

The change to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, retains the language of current subsection (a)(2)(A). In light of the temporary moratorium imposed by the section on the issuance of Triple T permits and commission direction to develop Triple T rules that provide assurances that CWD is not spread by Triple T activities, the proposed amendment is moot.

The change to §65.99, regarding Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, adds language to clarify that trace-in facilities are included in the applicability of the section, as discussed earlier in this preamble. The change also eliminates a deadline for sample submissions in subsection (e)(2)(E) that is no longer applicable or necessary and alters subsection (e)(4) to clarify that the 45-day clock for sample submissions imposed by the paragraph begins on the last known exposure date or from the date the department notifies the permittee of trace status, whichever is later, which is intended to allow permittees additional time to submit samples. Additionally, the change inserts a specific reference to subsection (h) in subsection (f)(3)(D) and (E) to be consistent with the structure of other references to the rules regarding custom testing plans. Finally, the change adds subsection (g) to prescribe requirements for breeding facilities epidemiologically connected to a CWD-positive breeding facility as a consequence of being a trace-in facility. Those requirements are the same as those prescribed by the rules for other types of trace facilities, consisting of requirements to inspect the facility daily for mortalities, immediately report all test-eligible mortalities that occur within the facility, and immediately collect test samples from all test-eligible mortalities that occur within the facility and submit the samples for post-mortem testing within one business day of collection; provisions for the restoration of MQ status upon submission of post-mortem test results of "not detected" for all mortalities; testing provisions for facilities that for whatever reason cannot test trace deer as required; and provisions prescribing the process for requesting and accepting or declining a custom testing plan developed by the department in lieu of the provisions set forth in the rules. The change also makes additional alterations where necessary to indicate the applicability of the rules to trace-in facilities.

CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, red deer, sika, and others (susceptible species). CWD is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep) and bovine spongiform encephalopathy (BSE, found in cattle and commonly known as "Mad Cow Disease"), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. CWD is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination).

White-tailed deer and mule deer are indigenous species authorized to be regulated by the department under the Parks and Wildlife Code. Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for better wildlife management (popularly referred to as "Triple T" permits). Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of captive-raised deer for breeding purposes. A deer breeder permit affords deer breeders certain privileges, such as (among other things) the authority to buy, sell, transfer, lease, and release captive-bred white-tailed and mule deer, subject to the regulations of the commission and the conditions of the permit. Breeder deer may be purchased, sold, transferred, leased, or received only for purposes of propagation or liberation. Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, the department may issue a Deer Management Permit (DMP) allowing the temporary possession of free-ranging white-tailed or mule deer within an enclosure on property surrounded by a fence capable of retaining white-tailed deer (under reasonable and ordinary circumstances) for propagation purposes. At the current time, there are no rules authorizing DMP activities for mule deer.

The department, along with the Texas Animal Health Commission (TAHC), has been engaged in an ongoing battle against CWD in Texas since 2002, including in response to repeated detections within deer breeding facilities. Since 2002, more than 130,000 "not detected" post-mortem CWD test results have been obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted more than 47,000 "not detected" post-mortem test results as well. The recent detections of CWD in seven additional breeding facilities create an unprecedented situation because they are at a scale that is orders of magnitude greater than earlier instances of detection encountered by the department.

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 currently no scientific evidence to indicate that CWD is transmissible to humans; however, both the CDC and the World Health Organization strongly recommend testing animals from CWD Zones prior to consumption, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to cervids. Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population in the United States, and there is evidence that hunters tend to 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 captive or free-ranging cervid populations. The potential implications of CWD for Texas and its annual, multi-billion dollar ranching, hunting, real estate, tourism, and wildlife management-related economies could be significant, unless it is contained and controlled.

The department has engaged in frequent rulemaking over the years to address both the general threat posed by CWD and the repeated detection of CWD in deer breeding facilities. In 2005, the department adopted rules (30 TexReg 3595) that 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. In 2012, based on recommendations from the department's CWD Task Force (an ad hoc group of deer management professionals, landowners, veterinarians, scientists, and deer breeders), the department adopted rules (37 TexReg 10231) to implement a CWD containment strategy in response to the detection of CWD in free-ranging mule deer located in the Hueco Mountains, the first detection of CWD in Texas. In 2015, the department discovered CWD in a deer breeding facility in Medina County and adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, followed by rules (41 TexReg 815) intended to function through the 2015-2016 hunting season. Working closely with TAHC and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department intensively utilized input from stakeholders and interested parties to develop and adopt comprehensive CWD management rules in 2016 (41 TexReg 5726), including provisions for live testing ("ante-mortem") of deer for CWD. Since 2002, the department has made a continuous, concerted effort to involve the regulated community and stakeholders in the process of developing appropriate CWD response, management, and containment strategies, including input from the Breeder User Group (an ad hoc group of deer breeders), the CWD Task Force, the Private Lands Advisory Committee (an advisory group of private landowners from various ecological regions of the state), and the White-tailed Deer and Mule Deer Advisory Committees (advisory groups of landowners, hunters, wildlife managers, and other stakeholders).

The department has also engaged in several rulemakings (via both emergency and normal rulemaking processes) to create containment and surveillance zones in response to CWD detections in both free-ranging and captive deer in various parts of the state. Those rules are contained in Division 1 of Chapter 65, Subchapter B.

The current rules in Division 2 of Chapter 65, Subchapter B have been referred to commonly as the "comprehensive" rules. The rules adopted in this rulemaking incorporate the word "comprehensive" in the title of the division for ease of reference and reduction of confusion. The references to "current rules" in this preamble do not include the emergency rule adopted on June 22, 2021.

The current rules can be generally described as functioning together to impose testing standards necessary to provide a statistically representative sampling effort within deer breeding facilities for purposes of minimally effective surveillance for CWD. The current rules set forth specific CWD testing requirements for deer breeders, which must be satisfied in order to transfer deer to other deer breeders or for purposes of release. One of the most effective approaches to managing infectious diseases and arresting the spread of a disease is to segregate populations of unknown disease risk, suspicious individuals, and suspicious populations from unexposed populations. As a matter of epidemiological probability, when animals from a population at higher risk of harboring an infectious disease are introduced to a population of animals at a lower risk of harboring an infectious disease, the confidence that the receiving population will remain disease-free is reduced. The current rules implement such an approach, albeit at a level that the department unfortunately has concluded, based on the continued spread of CWD, is ineffective in sufficiently reducing the risk of transmission of CWD between breeding facilities or from breeding facilities to release sites. Under current rule, breeding facilities are classified into two broad categories: those facilities authorized to transfer deer (MQ facilities) and those facilities not authorized to transfer deer (NMQ facilities). MQ facilities are further subclassified according to the relative level of risk for the presence of CWD within each facility, based on the provenance of the deer within each facility and the results of continuous annual testing. Cont'd...