Commission Agenda Item No. 3
Exhibit A

DEER BREEDER RULES - CWD TESTING PROVISIONS
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes the repeal of §65.98, concerning Transitional Provisions, and new §65.98, concerning Special Provisions for Facilities Subject to CWD Testing Plans.

        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. Earlier this year, the department promulgated additional rules in an effort to assist those facilities that did not or could not either test the minimum number of eligible-aged mortalities or at least 3.6 percent of the eligible aged population in the breeding facility in order to maintain MQ status, and did not have a sufficient number of eligible-aged animals to ante-mortem test in order to regain MQ status. The department has now been tasked with developing a process for assisting the remaining facilities that cannot meet any of the current disease testing standards because they possess no deer (the department estimates that the number is less than 25, out of over 1,100 breeder facilities), and with developing a process to allow facilities that do not have a sufficient number of eligible-aged animals to be able to obtain limited MQ status in less time than possible under current rule.

        The department’s containment strategy with respect to breeder deer historically has been to conduct surveillance testing within deer breeding facilities and authorizing releases only after determining that CWD is probably not present. In this manner, all disease testing is done within the confines of the breeding facility, thereby reducing the risk of transmitting CWD out of the facility. The proposed new rule would diverge from that model, however, because after considering recommendations of the department’s Breeder User Group and CWD Task Force, the department has concluded that the only option available that offers a means of restoring limited MQ status for the remaining few facilities that either cannot move deer or choose not to test deer according to current rules, and provides some assurance that CWD is not being spread beyond breeding facilities is to custom design a CWD testing plan for each facility to allow for release site testing to substitute for breeding facility testing. This approach would allow for a limited MQ status and increase CWD testing at department-approved release sites with the idea that the disease could be detected early and managed if it is transmitted from the source breeding facility.

        For facilities that have no deer, the CWD testing plan would apply to the breeding facility and release sites that have received deer from that facility in the past. For all other facilities, the rules would require a whole-herd ante-mortem test within the facility at least one year after the herd inventory is documented followed by additional subsequent testing as prescribed by a CWD testing plan. The department has determined that the appropriate epidemiological standard for each plan is the capability of detecting the presence of CWD with 99 percent confidence if it exists at 5 percent prevalence (assuming an infinite population), which offers reasonable assurances of effective disease monitoring on the landscape (i.e., beyond breeding facilities). The rules would require the department to seek review and comment from TAHC on each plan and to consider any comments, which is necessary to provide for a thorough vetting of the epidemiological implications of each plan. Additionally, the proposed rules would require the owner of a participating release site to agree in writing to meet the requirements of the CWD testing plan, which is necessary because the departments seeks certainty that testing at release sites will occur. The rules would also provide that failure to abide by a provision of the CWD testing plan at a release site would be an offense.

        Proposed new 65.98(a) would establish the predicate conditions for the applicability of the section, which are that a breeding facility must be currently designated non-movement qualified (NMQ) under current rules and, as determined by the department, to be incapable of satisfying the requirements of §95.94(a) to achieve movement qualified (MQ) status.

        Proposed new subsection (b) would address the first of two categories of breeding facilities that could be affected by the rule, facilities with no deer. There are deer breeding facilities that contain zero deer and by rule cannot receive deer because they are either epidemiologically connected to a breeding facility where CWD has been found, because the deer breeder has miscalculated and released too many deer to allow for a sufficient number of deer remaining in the facility to be available for testing, or because the facility was destroyed by a hurricane (or some other natural disaster) and all deer either escaped or died and thus are not available for testing. For these facilities, the department would develop a CWD testing plan covering the breeding facility and associated release sites. The proposed new rule would stipulate that a release site affected by a CWD testing plan be designated NMQ except as authorized by the plan, which is necessary because it is epidemiologically important that the department have an exact account of all deer transferred into the release site. Eventually, depending on the rate of testing, the department would be able to establish that CWD was probably not present at the breeding facility, at which time the department would designate the breeding facility MQ and the release site MQ.

        The second category of deer breeding facility that could be affected by the proposed new rule is breeding facilities that contain deer and are not interested in meeting the requirements of existing rules to attain MQ status. Proposed new subsection (c) would address such facilities.

        Proposed new subsection (c)(1) would establish the conditions under which a breeding facility would be considered by the department for the applicability of the new rules. First, the department must be able to verify that the facility has not received any deer that have been exposed to CWD, which is necessary because if at any time the facility contained exposed deer the probability that CWD might be present is increased to the extent that movement of deer from the facility is contraindicated for disease management purposes. Next, the department must be able to confirm that there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory reported in the department’s database, which is necessary to definitively rule out the presence of deer of unknown provenance. Additionally, it is important for epidemiological purposes that at least one year elapse between a department herd inventory inspection and the initiation of testing under the proposed new rule. Since CWD is not detectable in animals soon after exposure, especially by means of ante-mortem testing, the rule must require sufficient time between potential exposure and disease testing, and the department believes 12 months is sufficient as that has been a standard established in herd plans by Texas Animal Health Commission.  Therefore, the rule would require a department herd inventory inspection to have been completed at least 12 months prior to the initiation of ante-mortem testing required by the rule. Finally, the rule would stipulate that all eligible-aged deer in the facility be subjected to ante-mortem testing with a test result of “not detected” returned for all tests. Before authorizing the release of breeder deer, the department would like to have at least minimal assurance that deer being released have not tested positive for CWD.

        Proposed new subsection (c)(2) would authorize the development of a CWD testing plan for breeding facilities and associated release sites meeting the threshold requirements for the applicability of the proposed new rule. In developing a CWD testing plan, the department will consider all pertinent factors, including but not limited to the characteristics and particulars of all transfers to and from the breeding facilities and the release site(s), which is necessary to develop an epidemiological profile upon which to base a CWD testing plan.

        Proposed new paragraph (3) would provide that upon meeting the requirements of paragraphs (1) and (2), specific transfers would be allowed to take place under the provisions of this section and the CWD testing plan, which is necessary to provide a legal exception to provisions elsewhere in the division that prohibit the transfer of deer by a breeding facility designated NMQ.

        Proposed new paragraph (4) would require all deer released under the provisions of the proposed new section to be tagged with a button type Radio Frequency Identification (RFID) tag. The provision is necessary to allow the department to definitively identify individual deer released under the provisions of this subchapter, which is necessary because the CWD testing plans will require the testing of most if not all mortalities and for epidemiological purposes there must be a way to discriminate deer released under this section from all other deer on the release site.

        Proposed new paragraph (5) would provide that a release site subject to the provisions of the subsection be automatically designated NMQ and prohibited from receiving deer from any source unless specifically authorized to do so by a CWD testing plan and then only from the sources specifically identified in the CWD testing plan. The proposed provision is necessary because the release of deer under the provisions of the proposed new subsection (unlike releases authorized under current rule) would place deer on the landscape before the department has a reasonable assurance that CWD is not present in the source population. Therefore, deer from any other source must be of known provenance and disease history in order to avoid confounding testing at the release site. Similarly, proposed new paragraph (6) would apply the same precaution to breeding facilities.

        Eventually, depending on the rate of continuing testing of mortalities within the breeding facility and the rate of mortality testing on the release sites, the department would be able to establish that CWD was probably not present at the breeding facility, at which time the department would designate the breeding facility MQ and the release MQ.

        Proposed new subsection (d) would limit the applicability of the section to any breeding facility to one instance of use. The department has determined that the proposed rule is directed to benefit deer breeders who are experiencing difficulties complying with existing rules to obtain MQ status. For that reason, the department believes that a deer breeder should be able to use the provisions of the proposed new rule once and only once, lest the subsection be misused as a default remedy for carelessness.

        Proposed new subsection (e) would clarify that the provisions of §65.94(f) cannot be used to achieve MQ status for a deer breeding facility that is subject to a valid CWD testing plan under the proposed new rule. The provision is necessary because the current testing requirements for deer breeders should not be subject to circumvention by the use of the release provisions of the proposed new section to reduce testing obligations within the breeding facility that are made possible by inventory reduction via release under this section.

        Finally, proposed subsection (f) would clarify that a violation of any provision of the subsection or a CWD testing plan would be an offense. Such actions are already offenses, as they violate provisions of current statutes and regulatory provisions adopted pursuant to authority granted by those statues; however, the department thinks it is prudent to stress the fact in order to avoid confusion with respect to compliance.     

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the new section is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule, as administration and enforcement duties resulting from the rules will be exercised by existing personnel and resources.

3. Public Benefit/Cost Note.

        Mr. Lockwood also has determined that for each of the first five years that the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be additional regulatory flexibility for the regulated community and a pathway for certain deer breeding facilities that otherwise would not be permitted to transfer deer to gain that ability.

        There will be no adverse economic effect on persons required to comply with the rule as proposed, as the proposed rule would not be mandatory, but at the discretion of the regulated community.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that the rule will not result in adverse economic impacts to small businesses, micro-businesses, or rural communities because it creates a voluntary pathway for deer breeders who are otherwise prohibited from transferring deer to gain the status to do so. A member of the regulated community who does not wish to utilize that pathway would not be required to do so and would be able to pursue other options. On that basis, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

        (D) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (E) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) will create a new regulation (by creating an additional testing option that could allow certain deer breeders to achieve MQ status);

                 (6) expand an existing regulation by creating additional testing options, but would not limit, or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.