Commission Agenda Item No. 4
Presenter: Mitch Lockwood

Action
Disease Detection and Response Rules - Chronic Wasting Disease (CWD) Zones Rules - Movement of Deer - Recommended Adoption of Proposed Changes
August 24, 2017

I.      Executive Summary:  This item seeks adoption of proposed amendments to the Texas Parks and Wildlife Department (TPWD) rules governing Chronic Wasting Disease (CWD) management. The proposed changes:

II.     Discussion:  In May of 2017, the Texas Parks and Wildlife (TPW) Commission established a CWD Containment Zone and modified the existing Surveillance Zone (SZ) in portions of Bandera, Medina, and Uvalde counties as a result of CWD being confirmed in a free-ranging deer harvested by a hunter in the area. The rules also included certain liberalizations of movement restrictions on breeder deer, but did not address the release of breeder deer from TC 3 breeding facilities under herd plans authorized by TAHC. The proposed amendments remedy this situation, and clarify provisions that harmonize Division 1 and Division 2 of Chapter 65, Subchapter B.

The rules were published in the July 21, 2017, issue of the Texas Register (42 TexReg 3619). Staff will be provided a summary of public comment at the meeting. 

III.   Recommendation:  Staff recommends that the TPW Commission adopt the following motions:

“The Texas Parks and Wildlife Commission adopts amendments to new §65.83 and amendments to §65.86 and §65.91, concerning Disease Detection and Response, with changes as necessary to the proposed text as published in the July 21, 2017 issue of the Texas Register (42 TexReg 3619)."

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 4
Exhibit A

DISEASE DETECTION AND RESPONSE RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes new §65.83 and amendments to §65.86 and §65.91, concerning Disease Detection and Response.

        Proposed new §65.83, concerning Special Provisions, would allow for the release of breeder deer from a TC 3 facility within a Containment Zone (CZ) or Surveillance Zone (SZ) to adjoining acreage under the same ownership, provided the facility is in compliance with the provisions of §65.94, concerning Breeding Facility Minimum Movement Qualification and §65.95, concerning Movement of Breeder Deer (both of which are in Division 2 of Subchapter B) and the release is authorized under a herd plan issued by the Texas Animal Health Commission (TAHC), which may also specify testing requirements. In a recent rulemaking, the department liberalized certain provisions of Subchapter B Division 1 relating to the movement of live deer to or from deer breeding facilities within a CZ and allowed for the release of breeder deer in a SZ from a deer breeding facility located outside a SZ if authorized by Division 2 of this subchapter. Those amendments failed to remove an inadvertent complete prohibition on the release of breeder deer from TC 3 facilities located within a CZ or SZ. The department intended to allow for release of breeder deer from a TC 3 breeding facility located within a CZ or SZ and designated under the provisions of Division 2 as movement qualified (MQ), provided that facility is operating under a herd plan that authorizes the release of deer to adjoining acreage under the same ownership and is in compliance with all applicable provisions of this subchapter. The proposed new section remedies that oversight.

        The proposed amendments to §65.86, concerning Preemption, and §65.91, concerning General Provisions, would alter the provisions of those sections to achieve the intended harmonization of the provisions of Subchapter B, Division 1 with the provisions of Subchapter B, Division 2 and the remainder of Chapter 65. In 2013 the department adopted §§65.80-65.82 and 65.84-65.89 in response to the discovery of chronic wasting disease (CWD) in far west Texas. The rules created mechanisms to contain and limit the spread of CWD following discovery. At that time, §§65.80-65.82 and 65.84-65.89 constituted the entirety of Subchapter B; however, in 2016 the department adopted §§65.90-65.99 to address the discovery of CWD in deer breeding facilities, which necessitated the designation of §§65.80-65.82 and 65.84-65.89 as Division 1 and §§65.90-65.99 as Division 2. The provisions of §65.86 currently refer to the resolution of conflicts between Subchapter B and any other subchapter of Chapter 65, and should be altered to apply to conflicts between Division 1 and Division 2 of Subchapter B and conflicts between Division 1 of Subchapter B any other subchapter of Chapter 65. The proposed amendment to §65.86 would accomplish that. The proposed amendment to §65.91 would similarly clarify the relationships between Division 2, Division 1, and the remainder of Chapter 65.

        The department has engaged in a number of rulemakings to address, contain, and manage chronic wasting disease following its discovery in Texas in both captive and free-ranging populations.  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. 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. 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). Moreover, a high prevalence of the disease in free-ranging populations correlates with deer population declines and human dimensions research indicates that hunters will avoid areas of high CWD prevalence. 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.

2. Fiscal Note.

        Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of disease management activities will administer and enforce the rules as part of their current job duties and resources.

3. Public Benefit/Cost Note.

        Mr. Wolf also has determined that for each of the first five years the new rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduction of the probability of CWD being spread from facilities and locations where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

        (B) There will be no adverse economic impact on persons required to comply with the rules as proposed, as the rules as proposed do not impose additional restrictions on any person.

        (C) 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 and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to “engage in the business of breeding breeder deer in the immediate locality for which the permit was issued” and to “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation.” As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer. The same is not true of other permits issued by the department that authorize possession of live deer and are affected by the proposed rules (DMP, Triple T), which authorize the trapping, temporarily detention, and release of deer, but unlike the deer breeder permit do not authorize a permit holder to buy or sell deer, or to exchange deer for anything of value. Thus, any adverse economic impacts to small and microbusinesses resulting from the rules would be limited to deer breeder permit holders.

        For the purposes of this analysis, the department considers all deer breeders to be small or microbusinesses. The department has determined that proposed rules will affect three deer breeders, all of which hold TC 3 status. The department has determined that there will be no adverse economic effects on the affected small businesses, microbusinesses, and persons required to comply with the rules as proposed, and, if anything, that any fiscal impacts will be positive, since the rules as proposed would allow the release of deer from a TC 3 breeding facility within a CZ or SZ if the facility is both MQ and under a herd plan that authorizes release to adjoining acreage, which would provide marketable hunting opportunity. Accordingly, the department has not prepared a regulatory flexibility analysis under 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 rules as proposed will not result in direct impacts to local economies.

        (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed new rules. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

4. Request for Public Comment.

        Comments on the proposed rules may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments and new section are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; 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; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

        The proposed amendments and new section affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

6. Rule Text.

        §65.83. Special Provisions. A TC 3 breeding facility located in a CZ or SZ may release breeder deer to adjoining acreage under the same ownership, provided:

                 (1) the title in the county deed records reflects that the surface of the release site and of the breeding facility is held by the same owner or owners;

                 (2) the facility is designated as MQ under the provisions of §65.94 of this title (relating to Breeding Facility Minimum Movement Qualification) and is in compliance with the requirements of §65.95 of this title (concerning Movement of Breeder Deer);

                 (3) the release is specifically authorized in a herd plan prepared for the facility by the Texas Animal Health Commission and TPWD; and

                 (4) the TC 3 breeding facility that releases breeder deer under the provisions of this section is in compliance with all applicable provisions of this subchapter, including provisions relating to the testing of released breeder deer, except as specifically exempted under a herd plan prepared and approved by the department and TAHC and signed by the permit holder.

         §65.86. Preemption. To the extent a provision of this division[subchapter] conflicts with a provision of another subchapter of this chapter, or Division 2 of this subchapter, this division[subchapter] controls.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agency’s authority.

        Issue in Austin, Texas, on

        The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; 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; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

        §65.91. General Provisions.

                 (a) To the extent that any provision of this division[subchapter] conflicts with any provision of this chapter other than Division 1 of this subchapter, this division[subchapter] prevails.

                 (b) – (i) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agency’s authority.

            Issue in Austin, Texas, on

(Comment on this proposal)