Commission Agenda Item No. 4
Exhibit A

DISEASE DETECTION AND RESPONSE RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §65.81, concerning Disease Detection and Response. The proposed amendment would expand the current CWD (chronic wasting disease) Containment Zone (CZ) in the Texas Panhandle in response to the recent detection of CWD in a free-ranging white-tailed deer in Hartley County. The creation of a CZ imposes certain restrictions on the movement of live deer under department-issued permits and the movement of deer carcasses and body parts, and the department may establish mandatory check stations where hunters must bring harvested deer for CWD testing.

        Chronic wasting disease 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.

        Since the first detection of CWD in Texas in 2012 (in free-ranging mule deer in far West Texas), there have been additional positives in both captive and free-ranging populations in various locations. The department’s containment strategy is to react to discoveries by establishing zones within which the movement of live deer under department permits and harvested deer by hunters is restricted.

        The department recently received confirmation that a 2.5-year-old white-tailed deer killed by an automobile in Hartley County tested positive for CWD. Both a Surveillance Zone (SZ) and a Containment Zone are currently in effect in portions of Hartley County in response to the detection of CWD in a free-ranging mule deer during the 2015-16 hunting season. The white-tailed deer that tested positive for CWD was killed on the border of the current CZ and SZ; therefore, the department proposes to expand the current CZ accordingly.  The current Surveillance Zone in that area will remain unchanged.  

2. Fiscal Note.

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

        There will be minimal, if any, adverse economic effect on persons required to comply with the rule as proposed.

        (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, or 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts” to determine if any further analysis is required. 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 proposed rule would restrict the movement of deer under deer breeding permits issued by the department. The department has determined that most, if not all, deer breeders in Texas meet the statutory definition of a small or microbusiness (Government Code, Chapter 2006), and that the proposed rule would affect one rural community (as defined by Government Code, Chapter 2006); however, the department also has determined that the rule as proposed will not result in adverse economic impacts to small and microbusinesses or rural communities. The rule as proposed alters only the boundaries of the current CZ. There are no deer breeders within the area encompassed by the prospective zone expansion and most of the affected rural community (Hartley, Texas) is already within the current CZ (Hartley straddles the current CZ boundary, which is U.S. Hwy. 385). Nevertheless, the proposed rule imposes no direct costs of compliance on the rural community; therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (E) 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 rule.

        (F) 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.

        (G) 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) not create a new regulation;

                 (6) expand an existing regulation (by enlarging the current CZ);

                 (7) increase the number of individuals subject to regulation (by imposing mandatory check station and carcass movement restrictions in an area where such restrictions are not currently effect, thereby affecting hunters); and

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

4. Request for Public Comment.