The Texas Animal Health Commission (commission) in a duly noticed meeting on December 7, 2021, adopted amendments to Chapter 51, titled "Entry Requirements", in Title 4 of the Texas Administrative Code. Section 51.16 is adopted without changes, and will not be republished. The commission is adopting §51.5 and §51.10 with changes to the proposed text as published in the November 5, 2021, issue of the Texas Register (46 TexReg 7482), and these sections will be republished.

The change to §51.5, concerning Movement of Quarantined Animals, alters language in (b)(2) to add the word "an" and replace the word "diseases" with "disease" because the requirement applies to the exposure of any infections, contagious or communicable disease. The change also corrects language in (b) and replaces the word "originate" with "originate(s)".

The change to proposed §51.10, concerning Cervidae, adds language to subsection (a) to clarify that the definition of CWD susceptible species includes muntjac deer (muntiacus). The change is nonsubstantive as muntjac deer were captured by the current definition because it is a "cervid species determined to be susceptible to CWD, which means an animal that has had a diagnosis confirmed by means of an official test conducted by a laboratory approved by USDA/APHIS. USDA/APHIS recognizes muntjac as a CWD susceptible species.

JUSTIFICATION FOR RULE ACTION

The adoption of these rules improves readability and meets the requirements of Senate Bill 705 and Senate Bill 1997 amendments enacted by the 87th Texas Legislature. Further, the rules will control and reduce the incidence of CWD entering Texas, which will protect CWD susceptible species, including exotic livestock, from disease. The rules also provide clearer guidelines of entry requirements for all cervid species known to be susceptible to CWD.

HOW THE RULES WILL FUNCTION

The amendments to §51.5 update the reference from §161.061 of the Texas Agriculture Code to §45.3 of the Texas Administrative Code in accordance with Senate Bill 705 enacted by the Texas Legislature during the 87th Regular Session. Senate Bill 705 amended §161.041 and §161.061 of the Texas Agriculture Code, and now requires the commission to adopt rules listing the diseases that require control or eradication. The commission adopted amendments to Chapter 45, titled "Reportable and Actionable Diseases", in a duly noticed meeting on September 21, 2021. The amendments to §51.5 also clarify the Executive Director's approval is required for each consignment of animals moving to slaughter or to a quarantined feedlot for those animals affected with or recently exposed to an infectious, contagious, or communicable disease or that originate from quarantined herds or flocks. Grammatical and editorial changes are also adopted for consistency and improved readability. In §51.5(b), poultry and birds are proposed for deletion because "animal" encompasses the terms. "Animal" is defined in 4 TAC §51.1 to include livestock, exotic livestock, domestic fowl, and exotic fowl.

In §51.10, concerning Cervidae, amendments are proposed to subsections (a) and (b) to control and reduce the incidence of CWD entering Texas, as well as provide clearer guidelines of entry requirements for CWD susceptible species. CWD is a degenerative and fatal neurological communicable disease recognized by the veterinary profession that affects susceptible cervid species. CWD can spread through natural movements of infected animals and transportation of live infected animals or carcass parts. Specifically, prions are shed from infected animals in saliva, urine, blood, soft-antler material, feces, or from animal decomposition, which ultimately contaminates the environment in which CWD susceptible species live. CWD has a long incubation period, so animals infected with CWD may not exhibit clinical signs of the disease for months or years after infection and can transmit the disease to other animals during a silent incubation period. The disease can be passed through contaminated environmental conditions, and may persist for a long period of time. Currently, no vaccine or treatment for CWD exists. Grammatical and editorial changes are also proposed for improved readability and consistency. Specifically, certain terms and provisions, such as the addition of reindeer and caribou, are adopted to be consistent with Title 4 Texas Administrative Code Chapter 40. The addition of muntjac deer is adopted for clarification as it is incorporated into the existing rule as USDA/APHIS recognized the species as CWD susceptible.

The new section, §51.16, concerning Enforcement and Penalties, describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Subsection (b) provides that administrative penalties may not exceed $5,000 each day a violation continues or occurs.

SUMMARY OF COMMENTS RECEIVED AND COMMISSION RESPONSE

The 30-day comment period ended on December 5, 2021. The commission received thirteen (13) public comments during the comment period; nine (9) comments were from individuals who opposed adoption of part of the rules as proposed, two (2) were from organizations who opposed adoption of the amendments, and two (2) were from organizations who supported adoption of the amendments.

Some comments contained impressions, narratives, and background or extraneous information that while certainly useful to the commission in forming an understanding of the commenter's point of view, were not, strictly speaking, germane to specific provisions in the rules proposed. The commission has therefore categorized comments by the subject of opposition. The commission believes that it is important to identify the specific rationale expressed in opposition to adoption and to respond it. Therefore, rather than a lengthy, and repetitive verbatim comment-by-comment, point-by-point response format, the commission has elected to, where possible, separate comments into the specific reasons articulated for opposition to the rules and respond to those comments in one statement. The commission notes that this approach results in the number of responses being greater than the total number of commenters.

Comment: Eight commenters opposed adoption and stated, variously, that the rules are not supported by science or have no scientific basis.

Response: The commission disagrees with the comments and responds that the adopted rules were developed by veterinarians and epidemiologists, and are predicated on sound scientific principles, including surveillance, control and prevention to mitigate the impacts of an incurable disease being transported into Texas. No changes were made as a result of these comments.

Comment: Six commenters opposed adoption in some form because the rules will potentially result in undesired economic and financial outcomes or hardships. Commenters stated that the rules will negatively affect my business, are regulating us out of business, will potentially contribute to the loss of many family farms livelihoods, has the possibility of severely harming my ability to make a living off of family land, will help squash a market that is overregulated, and will cause hardship for many ranches. Most of these comments were from out-of-state cervid producers.

Response: The commission disagrees with the comments and responds that without the availability of specific and complete financial data, it is difficult to assess these claims. Based on publicly advertised sale and hunting prices of exotic CWD susceptible species, it is unlikely the commission's rules would force an exotic CWD susceptible species producer out of business. Further, because the adopted rules do not close Texas' borders to all cervid imports or limit movement to states without a CWD detection, it is difficult to envision a scenario where Texas land or facility owners would be unable to source these CWD susceptible species from operations with a lower CWD disease risk. No changes were made as a result of these comments.

Comment: Four commenters opposed adoption and stated the commission's forecasted economic impact is extremely inaccurate or false and the language is ambiguous, inviting extraordinary regulation on industry.

Response: The commission disagrees that the agency's statement is inaccurate, false or invites extraordinary regulation on the cervid industry. The commission understands "adverse" to mean something that prevents or arrests an activity or makes it exceedingly difficult to continue. Without the availability of specific and complete financial data and information, it is difficult to assess these claims. The commission notes the rules would not likely result in an increased cost of compliance for those directly regulated by the commission because the rules do not directly affect the sales price of exotic CWD susceptible species. This is a business matter between the buyer and seller and it is a common business model to increase the price of the good or service being offered to cover any increased operational costs. Given publicly available information, and claims regarding the sales and hunting prices of exotic species, there continues to be a reasonable opportunity for in-state and out-of-state facilities to generate and maintain profitability. Further, because the adopted rules do not close Texas' borders to all cervid imports or limit movement to states without a CWD detection, it is difficult to envision a scenario where Texas land or facility owners would be unable to source CWD susceptible species from operations with a lower disease risk. The TAHC determined that any costs associated with Texas producers having to source CWD susceptible species from premises that are a 25-mile radius beyond the CWD positive-location, are offset by the irreversible effects of introducing or spreading CWD in Texas. The costs to Texas producers include epidemiological investigations, quarantines, removal of animals from CWD affected and trace-premises and cleaning and disinfecting costs. The TAHC recognizes that the 25-mile restriction may impact out-of-state operations, especially because many states have already banned the importation of cervids into their state or banned movement of these animals from states confirmed to have CWD. However, the TAHC is not required to weigh the economic impact of out-of-state entities as part of its analysis. Further, although the commission did not determine there was an adverse economic impact to those directly regulated by the commission in Texas, the commission still considered alternatives to proposing the 25-mile radius requirement for entry. The commission considered proposing no action, halting all interstate movements, implementing a radius of 15, 25 or 50 miles, and a radius of 25 miles unless otherwise epidemiologically determined by the Executive Director. Based on the recent discoveries of CWD in free-ranging, captive and herds certified in an Approved State CWD Herd Certification Program in Texas and other states, as well as the varying degree of disease response, testing and surveillance conducted by other states, the commission found the rule as adopted necessary to protect the health of Texas' CWD susceptible species and prevent adverse economic impacts associated with Chronic Wasting Disease. No changes were made as a result of these comments.

Comment: Four commenters opposed adoption and stated, variously, that existing rules are adequate or that cervid growers are overburdened or overregulated. Commenters stated the cervid industry or cervid growers are the highest regulated industries in the country, animals transported have to be monitored CWD free for 5 years, rules are adequate that review herd health, and some commenters stated they have been testing for CWD or in the CWD program for 10, 15 and more than 20 years, which should be sufficient proof the producer is doing everything possible to combat CWD.

Response: The commission disagrees. In making its recommendation for a 25-mile restriction, the commission considered USDA's Herd Certification Program (HCP) and the value of the testing required for a herd to reach certified status. The commission also considered that from December 2016 to December 7, 2021, 36 of the 107 herds determined to be CWD positive in the US were HCP certified herds. Because CWD has a long incubation period, can spread through natural movement of infected animals or transportation of live infected animals or carcass parts, contaminates and persists in the environment, and there is no cure or preventative measure, there are limits to the HCP's ability to provide disease assurance. In addition to being a discharge of the agency's statutory authority to protect the state's exotic livestock from disease, the rules are predicated on sound scientific principles and were validly promulgated in accordance with all applicable statutory authority granted to the agency. No changes were made as a result of these comments.

Comment: Three commenters opposed adoption on the basis the rule expressly provides the Executive Director the discretion to epidemiologically determine if entry is permitted or denied. Commenters stated that this is unfettered discretion to arbitrarily deny someone who meets all the criteria for entry without having to follow science-based rules, that this is unlimited power to the government and does not provide a clear set of rules to allow for predictable business that effectively kills commerce, and this discretion will cause further economic loses in the state while doing very little to control CWD. Another commenter states that this is not seen in other cervid import rules or the federal CWD programs.

Response: The commission disagrees that this language is arbitrary. Any waiver or variance from the prescribed rules must be based on epidemiological determinates. This aligns with the Executive Director's existing authority delegated by the governing board of the commission. Pursuant to 4 TAC §59.2, the Executive Director shall administer the programs of the agency and has all powers necessary for such administration, as well as any specific duties assigned or functions delegated by the Commission. The Executive Director shall take those actions necessary to comply with and enforce federal and state laws applicable to the Texas Animal Health Commission. In case of unusual circumstances or individual hardship, the Executive Director, who must hold a degree in veterinary medicine, may vary or waive any provisions of commission rules provided such waiver is not in conflict with sound epidemiologic principles. No changes were made as a result of these comments.

Comment: The same three commenters opposed adoption and stated, variously, that a one size fits all policy is a mistake. Two commenters stated that of the 24 infected CWD herds in the 2021 fiscal year, only one was an elk herd, there are very few known CWD positive farmed elk herds in the United States, and that prevalence within elk herds is extremely low. The third commenter stated that elk and deer simply do not interact.

Response: The commission disagrees with the comment and responds that based on the recent discoveries of CWD in free-ranging, captive and herds certified in an Approved State CWD Herd Certification Program in Texas and other states, as well as the varying degree of disease response, testing and surveillance conducted by other states, the commission found the rule as adopted necessary to protect the health of all Texas' CWD susceptible species, including elk. The commission notes in 2021, there were two elk breeders that tested positive for CWD in the United States and both facilities were certified in a Herd Certification Program. In 2020, three of the seven elk operations that tested positive for CWD were also certified in a Herd Certification program. No changes were made as a result of this comment.

Comment: One commenter opposed adoption because the rule did not propose a sunset on the length of time since the discovery. The commenter explained that this could mean CWD was discovered one time in an area 12 years ago and never since despite a thorough search, but movement will still be barred.

Response. The TAHC disagrees with the comment and responds that the language preserving the Executive Director's discretion to evaluate epidemiological determinates ensures that all relevant disease information will be considered, including length of time since detection and surveillance and control measures conducted in the area of the positive location. No changes were made as a result of this comment.

Comment: One commenter opposed adoption and stated the 25-mile restriction was arbitrary and capricious, and has a direct economic impact on interstate commerce

Response: The commission disagrees with the comments and responds that the adopted rules were developed by veterinarians and epidemiologists, and are predicated on sound scientific principles, including surveillance, control and prevention to mitigate the impacts of an incurable disease being transported into Texas. The commission further responds that in addition to being a discharge of the agency's statutory duty to protect all exotic livestock from certain diseases, the rules were validly promulgated in accordance with all applicable statutory authority granted to the agency. No changes were made as a result of this comment

Comment: One commenter opposed adoption and stated CWD is everywhere, and it has not by itself wiped out any elk or deer herds or caused any health danger to humans. Response: The commission disagrees with the comment regarding the statement that CWD is everywhere and the characterization of CWD's effect on cervids. The commission responds that data obtained from TAHC's and the Texas Parks and Wildlife Department's CWD surveillance programs indicates that CWD, where it exists in Texas (with the possible exceptions being certain ranges of the far-western Trans Pecos region), is a result of a recent introduction. The commission further responds that CWD is detrimental to the age structure of cervid populations and that the commission has a statutory duty to protect exotic livestock from CWD. No changes were made as a result of the comment.

Comment: One commenter opposed adoption and stated this is another government grab to take away individual rights and property rights.

Response: The commission disagrees and determined the rule as adopted does not restrict, limit, or impose a burden on an owner's right to his or her private real property that would otherwise exist in the absence of government action. Instead, the proposed rules in part relate to the handling of animals, including requirements concerning movement, pursuant to 4 TAC §59.7. No changes were made as a result of this comment.

Comment: One commenter opposed adoption and believes the way TAHC and other wildlife programs across the nation handle CWD is not being done correctly. The commenter stated that instead of closing the borders to importation and the killing complete herds because of one positive case of CWD, the TAHC should spend more time and funding on finding a test for the disease that doesn't require killing the suspect animal and wiping out someone's livelihood.