The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§65.88, 65.91, 65.92, 65.95, 65.97, and 65.98, concerning Disease Detection and Response, and 65.605, 65.608, and 65.611, concerning Deer Breeder Permits.

The proposed amendments would function collectively to refine surveillance efforts as part of the agency's effort to manage chronic wasting disease (CWD).

CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as 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.

Much remains unknown about CWD, although robust efforts to increase knowledge are underway in many states and countries. 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. Currently, scientific evidence suggests that CWD has zoonotic potential; however, no confirmed cases of CWD have been found in humans. Consequently, both the Centers for Disease Control and Prevention and the World Health Organization strongly recommend testing animals taken in areas where CWD exists, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to certain species of cervids 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.

The department has engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD has been confirmed. The purpose of those CWD zones is to determine the geographic extent and prevalence of the disease while containing it by limiting the unnatural movement of live CWD-susceptible species as well as the movement of carcass parts.

The department's response to the emergence of CWD in captive and free-ranging populations is guided by the department's CWD Management Plan (Plan) https://tpwd.texas.gov/huntwild/wild/diseases/cwd/plan.phtml. Developed in 2012 in consultation with the Texas Animal Health Commission (TAHC), other governmental entities and conservation organizations, and various advisory groups consisting of landowners, hunters, deer managers, veterinarians, and epidemiologists, the Plan sets forth the department's CWD management strategies and informs regulatory responses to the detection of the disease in captive and free-ranging cervid populations in the state of Texas. The Plan is intended to be dynamic; in fact, it must be so in order to accommodate the growing understanding of the etiology, pathology, and epidemiology of the disease and the potential management pathways that emerge as it becomes better understood through time. The Plan proceeds from the premise that disease surveillance and active management of CWD once it is detected are critical to containing it on the landscape.

As noted previously in this preamble, the department has been engaged in a long-term effort to stem the spread of CWD; however, by 2021 it was apparent that more robust measures were warranted because CWD was still being detected in additional deer breeding facilities, as well as on multiple release sites associated with CWD-positive deer breeding facilities. The commission adopted those rules, which require higher rates of testing, ante-mortem (live-animal) testing of breeder deer prior to release, and enhanced recordkeeping and reporting measures, in December of 2021 (46 TexReg 8724). This year is the first full year of the applicability of those measures.

In the last six months the department has encountered an unprecedented increase in CWD detections, which is directly attributable to the regulatory actions taken in December 2021 to tighten the agency's CWD surveillance measures. Since that time, CWD has been detected in an additional 13 deer breeding facilities, two release sites associated with CWD-positive deer breeding facilities, and one free-ranging deer in a new area where CWD had not been previously detected. Department records indicate that within the last five years those breeding facilities transferred over 9,700 deer to other breeding facilities, release sites, and Deer Management Permit (DMP) sites. All those locations are therefore directly connected to the CWD-positive facilities and are subsequently of epidemiological concern. Additionally, 583 deer breeding facilities received deer from one or more of the directly connected breeding facilities, which means those facilities (referred to as "Tier 1" facilities) are indirectly connected to the positive facilities and are also of epidemiological concern because they have received exposed deer that were in a trace-out breeding facility.

In response to the magnitude and potential severity of this situation, the department on July 24, 2023, filed emergency rules to require the ante-mortem testing of test-eligible deer prior to transfer from a breeding facility to another breeding facility and to prohibit the removal of required permanent identification for any reason other than provided by statute. Those measures are included in this proposed rulemaking.

The proposed amendment to §65.88, concerning Deer Carcass Movement Restrictions, would streamline and simplify regulations governing the post-harvest transportation of deer taken by hunters in CWD management zones. Because CWD prions (the infectious agents that causes CWD) are known to be present in tissues of infected animals, especially brain, spinal cord and viscera, the department believes that care should be taken with respect to the treatment of carcasses of animals taken within a CWD management zone. Under current rule, a deer taken in a CWD management zone cannot be transported from the zone unless it has been processed as required by the section. The department has determined that the current rules can be modified to allow the movement of unprocessed carcasses from management zones to a final destination (the possessor's permanent residence or cold storage/processing facility) or taxidermist, provided it has been first presented at a department check station for tissue sample removal, which will allow the department to conduct disease surveillance and provide a method for notifying hunters in the event that an animal tests positive for CWD. The proposed amendment would also impose statewide carcass disposal measures, to consist of disposal of all deer parts not retained for cooking, storage, or taxidermy purposes to be disposed of (directly or indirectly) at a landfill permitted by the Texas Commission on Environmental Quality to receive such wastes, by interment at a depth of no less than three feet below the natural surface of the ground and covered with at least three feet of earthen material, or by being returned to the property where the animal was harvested. The department has determined that in light of the recent spate of CWD detections in deer breeding facilities (which are extensively epidemiologically interconnected and the source of deer released at hundreds of locations across the state), a statewide carcass disposal rule will be beneficial by limiting and ideally eliminating the careless, haphazard, or inadequate disposal of potentially infectious tissues, thus mitigating the potential spread of CWD.

The proposed amendment to §65.91, concerning General Provisions, would eliminate an exception in that provision for nursery facilities. As noted in the discussion of the proposed amendment to §65.95, concerning Movement of Breeder Deer, the department is proposing to eliminate the practice of moving breeder deer from deer breeding facilities to external facilities for nursing purposes.

The proposed amendment to §65.92, concerning CWD Testing, would conform an internal citation in subsection (b) of that section to comport it with proposed changes to other sections effected by this rulemaking.

The proposed amendment to §65.95, concerning Movement of Breeder Deer, would alter the section to provide an internal reference, remove current provisions applicable to nursery facilities, implement new provisions regarding the testing of breeder deer being transferred between breeding facilities, impose a residency requirement on breeder deer as a condition of transfer to another breeding facility or to a release site, remove an internal three-year limitation on the effectiveness of provisions governing the release of breeder deer, strengthen provisions governing the obligations of release-site owners in the event that a release site is epidemiologically linked by trace-out to a positive breeding facility, prohibit the release of breeder deer prior to April 1 of the year following birth, and provide for the suspension of participation in Managed Lands Deer Program activities for landowners who fail to comply with provisions applicable to trace-out release sites.

Current rules require a breeder deer to be the subject of an ante-mortem test (a live-animal test) before it can be transferred elsewhere for purposes of release. The proposed amendment would expand this requirement to apply to transfers between deer breeding facilities. The department has determined that in light of the spate of recent detections of CWD in multiple deer breeding facilities, it is not only prudent, but imperative to test all breeder deer before they are moved between deer breeding facilities, which is intended to impose a testing protocol capable of providing an acceptable probability of detecting CWD if it exists in any given breeding facility.

For similar reasons, the proposed amendment would eliminate the practice of transferring fawn deer from deer breeding facilities to external facilities for nursing purposes. The practice was considered to be an acceptable risk prior to the emergence of CWD; however, given the steady and increasing discoveries of CWD in deer breeding facilities across the state, the department has determined that the practice should be stopped.

The proposed amendment would impose a residency requirement for deer within deer breeding facilities in order to provide a minimum period of exposure to other deer within the facility, which will facilitate the department's ability to more accurately assess whether CWD exists in a facility, as well as to reduce the probability of transmission of the disease to additional facilities by transfer of deer that have recently been infected but have yet to reach the stage of disease progression that allows the disease to be detectible through approved disease testing methodologies.

The proposed amendment would impose new requirements for release sites that are epidemiologically connected to deer breeding facilities where CWD has been detected. Under current rule, the landowner of a release site that is epidemiologically connected to a positive deer breeding facility is required to test either 100 percent of all hunter-harvested deer at the release site property or one hunter-harvested deer per released deer (if authorized by a herd plan), whichever value is greater. Release site owners are also required by rule to maintain a harvest log. The department has determined that regulatory compliance at release sites has been problematic, as some release site owners have failed to conduct the required testing or maintain harvest logs as required. Although the department prohibits additional releases of deer at such sites unless approved by a herd plan, the epidemiological value of the animals at a trace-out release site is significant. The recent detections mark a dramatic increase in number and distribution of CWD-positive facilities across the state since 2020. Records indicate 367 trace release sites have received deer from these positive facilities and are of epidemiological concern. Although the owners of trace release sites are offered herd plans and placed under a hold order, herd plans do not require harvest on that property, only that if a deer is harvested a CWD sample must be collected and tested. The lack of harvest leaves the department in a precarious situation to mitigate potential spread of CWD to naïve areas. Timely removal of trace animals is critically important for CWD management. Therefore, the department has determined that it is necessary to require all trace deer at trace-out release sites to be removed and tested within 60 days of notification by the department that the site has been confirmed as a trace-out release site. In addition, the proposed amendment would eliminate the current provision allowing an alternative to 100 percent testing of hunter-harvested deer on trace-out release sites and require testing of all hunter-harvested deer until a sufficient number and distribution of samples has been achieved that would provide statistical confidence that if CWD were present at a certain prevalence on the release site, it would be detected. The proposed amendments would enhance the department's ability to more quickly assess whether exposed deer transferred from CWD-positive deer breeding facilities have spread CWD to trace-out release sites.

The proposed amendment also would eliminate current subsection (c)(6)(E), which imposed a three-year period of effectiveness for the provisions of paragraph (6). In a rulemaking in 2021 (46 TexReg 8724), the commission imposed a three-year period of effectiveness for ante-mortem testing of breeder deer prior to release, with the understanding that should continuation of the requirement be determined to be necessary, that decision would be made as needed in the future. As noted previously in this preamble, there has been an unprecedented significant increase in the detection of CWD within deer breeding facilities and some release sites associated with deer breeding facilities recently, which not only necessitates the continuation of the provisions of paragraph (6), but to do so indefinitely.

The proposed amendment also would provide that the owner of a release site that is not in compliance with the applicable provisions of Chapter 65, Subchapter B, Division 2 is ineligible for enrollment or continued participation in the Managed Lands Deer Program (MLDP) under Chapter 65, Subchapter A. The MLDP is a conservation program that offers special privileges to participants in exchange for conducting beneficial management actions. The department reasons that an owner of a trace-out release site who is unwilling to comply with CWD management provisions should not be afforded the privilege of participation in the program.

Finally, the proposed amendment would prohibit the release of breeder deer prior to April 1 of the year following the year in which the breeder deer is born, which is necessary to ensure that only breeder deer bearing permanent identification are released at release sites, which is necessary to facilitate expedited removal and testing in epidemiological investigations.

The proposed amendment to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, would require tissue samples collected for the issuance of a TTP (Trap, Transfer, and Process) permit to be submitted within seven days of collection. One of the recent detections of CWD occurred in a deer that was trapped in Bexar County under the provisions of a TTP permit. The TTP permit is used to remove surplus deer in situations in which hunting is impractical or unfeasible, such as in urban areas where discharge of firearms is prohibited. Typically, a TTP permit allows trapping activities between October 1 and March 31, and current rules require CWD test results to be submitted by May 1 following completion of permitted activities.; however, there are no requirements on how quickly those CWD samples must be submitted to the lab for testing. The department has determined that in light of the detection of CWD in TTP deer, it is necessary to require tissue samples to be submitted within seven days of collection, which will provide for quicker department response in the event of detection.

[NOTE: The commission on August 24, 2023, adopted a proposed amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Breeding Facilities. The previous day, the Work Session of the commission authorized publication in the Texas Register of an additional proposed amendment to that section, to be deliberated for adoption at the November 2, 2023, meeting of the commission. The rules of the Secretary of State (which operates the Texas Register and maintains the Texas Administrative Code) require a proposed rule to either be withdrawn or adopted and have taken effect before the same rule can be proposed for subsequent amendment. Following the August 24, 2023, commission meeting, the department filed a notice of adoption for §65.99 (August 30, 2023). That adoption will take effect September 19, 2023, one day later than the submission deadline for publication in the September 29, 2023, issue of the Texas Register, which is the last issue of the Texas Register that the proposed amendment to §65.99 can appear in and still be considered for adoption at the November 2, 2023, commission meeting. Because of the seriousness of the threat posed by CWD, the department believes it is imperative not to defer this rulemaking; therefore, this proposal has repackaged the proposed amendment to §65.99 as an amendment to §65.98, concerning Transition Provisions (and retitling the section accordingly), in order to provide the statutorily required 30-day public comment period necessary to allow deliberation by the commission for adoption in November, 2023. If adopted by the commission, these provisions will be comported with §65.99 at a later time.]

The proposed amendment to §65.98, concerning Transition Provisions, would alter the timeframes for tissue sample collection at deer breeding facilities designated by the department as Category B facilities (facilities in which not all deer of epidemiological concern are available). Those rules are currently contained in §65.99(e), concerning. Effective epidemiological investigations depend on specificity of time and place. Trace herds need to be evaluated in a timely fashion, and, historically, whole-herd testing requirements have been inconsistent with the timeliness of testing. Furthermore, some breeding facilities in which the date of last known exposure occurred within the 18 months prior to epidemiological connection have either not conducted or not submitted tests. The proposed amendment would create a more efficacious timeline for compliance with collection and submission of required ante-mortem testing samples for Category B breeding facilities, which is necessary to clear epidemiologically Cont'd...