Commission Agenda Item No. 5
Exhibit A

DISEASE DETECTION AND RESPONSE RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§65.90, 65.91, 65.95, and 65.97 concerning Chronic Wasting Disease—Movement of Deer. The proposed amendments would require facilities required to be registered with the department to receive white-tailed or mule deer under department-issued permits to be described by precise geospatial information regarding the locations where such deer are received.

        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 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. There is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either farmed or free-ranging cervid populations.

        CWD has been discovered in multiple locations in Texas, in both captive and free-ranging populations of native deer, which the department believes constitutes an existential threat to those resources, as well as the economies dependent upon them. In response, the department has engaged in numerous rulemakings in recent years to protect free-ranging and captive cervid populations from the spread of CWD. A crucial component of that effort is the monitoring of free-ranging deer that are trapped and translocated under department-issued permits and captive-bred deer that are introduced to, transferred among, and released from captive herds under department-issued permits. Such activities occur in virtually every area of the state. Because of the sheer geographic scale involved, the accuracy of geographical information regarding the locations where deer have been transferred by humans is one of the most important components of efficacious disease management efforts. Knowing exactly where individual animals are and have been allows epidemiological investigators to quickly and accurately determine the source and extent of pathways for disease propagation and allows responders to focus resources efficiently and effectively.

        The department is concerned that current rules governing the movement of live deer under various department-issued programs do not impose a consistent standard for identifying the locations where such deer are trapped, possessed, or transferred, which has the potential to complicate or even confound the department’s CWD management efforts.  The department has determined that the contents of applications and registrations relating to facility location and infrastructure should be specified by rule in order to avoid misunderstandings, confusion, or the implication that the information required in an application is voluntary rather than mandatory or that the accuracy of the information is open to interpretation by applicant. To that end, the department has determined that it is prudent to mandate all required facility registrations (deer breeding facilities (and associated transfer destinations), deer management permit facilities, sites associated with trap, transport, and transplant permits, and trap, transport, and process permits) to include a georeferenced map delineating the exact boundaries of each facility. This would allow the department to more quickly and effectively respond to CWD detections, promote efficiency in administrative processes, enhance enforcement of regulations, and prevent attempts to circumvent CWD testing requirements.

        The proposed amendment to §65.90, concerning Definitions, would alter the definition of “facility” to include locations affected by permits for the trapping, transporting, and processing of game animals (TTP).

        The proposed amendment to §65.91, concerning General Provisions, would provide that  no person shall introduce into or remove deer from or allow or authorize deer to be introduced into or removed from any facility unless a georeferenced map (a map image incorporating a system of geographic ground coordinates, such as latitude/longitude or Universal Transverse Mercator (UTM) coordinates) showing the exact boundaries of the facility has been submitted to the department prior to any such introduction or removal.

        The proposed amendment to §65.95, concerning Movement of Breeder Deer, would eliminate a reference to subsection (e) of §65.610 in subsection (a), which is necessary to prevent possible confusion with other provisions governing movement of deer under transfer permits.  

        The proposed amendment to 65.97, concerning Testing and Movement of Deer Pursuant to Triple T or TTP Permit, would remove subsection (a)(2), which would no longer be necessary if the proposed amendments discussed earlier in this preamble are adopted.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Leader, 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 or local governments as a result of administering or enforcing the proposed amendments.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be will be the increase and enhanced ability of the department to respond quickly and effectively to CWD discoveries, 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 effect on persons required to comply with the rules as proposed.

        (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.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community other than to submit a georeferenced map of facility locations, which can be easily done at virtually no expense by anyone. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (D) 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 impact local economies.

        (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (F) 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 rules.

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

        (H) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules 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) create a new regulation (the requirement for georeferenced maps);

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

                 (7) not expand, limit, or repeal an existing regulation; and

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

4. Request for Public Comment.