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Commission Agenda Item No. 3
Presenter: Mitch Lockwood

Action
Deer Breeder Regulations
Recommended Adoption of Proposed Changes
March 20, 2019

I.      Executive Summary: With this item, the staff seeks adoption of proposed amendments to rules governing deer breeding. The amendments would:

II.     Discussion: Under Texas Parks and Wildlife Code chapter 43, subchapter L, the Texas Parks and Wildlife Commission (the Commission) is authorized to promulgate rules governing the possession of white-tailed and mule deer under deer breeding permits issued by Texas Parks and Wildlife Department (TPWD). Current rules provide that breeder deer being transferred from deer breeding facilities for purposes of release may be detained for not more than 30 days in an enclosure at the release site to allow the deer to become acclimated to surroundings and habitat (“soft release”).

Texas Parks and Wildlife Department CWD management rules allow the release of breeder deer only to high-fenced release sites. For epidemiological tracing purposes, the exact physical parameters of each release site must be known and registered with TPWD via Texas Wildlife Information Management Services (TWIMS), the agency’s automated data system, which allows TPWD and Texas Animal Health Commission to document the location of every breeder deer that is liberated. Some release site owners have engaged in the practice of registering small high-fenced acreages within larger high-fenced acreages as release sites, using the smaller acreage as a de facto “extended soft release” pen (allowing deer to be detained for longer than the 30-day maximum for “soft releases” allowed by rule), and then amending the release site on file with TPWD when the deer are released to the larger surrounding acreage. This practice, if recurring at any site, is problematic for both TPWD and the regulated community because TWIMS is not designed to reconcile repeated changes to the dimensions and identities of release sites at one location, and it is possible for release site owners to unintentionally trigger undesired CWD movement qualification (MQ) standards. TPWD is not opposed in principle to allowing for some sort of extended “soft release” provisions, provided there is no conflict with existing rules governing Deer Management Permits or provisions regarding the removal of antlers from transferred bucks prior to hunting seasons. The proposed amendment (Exhibit A) would allow for extended “soft release” activities.

In 2016, the Commission responded to the detection of CWD in Texas deer by promulgating 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 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 (MQ status) in the event that post-mortem sampling falls below the minimum established in the rules. The rules also establish minimum age requirements for deer to be eligible for testing, which are based on veterinary and epidemiological thresholds for efficacy. However, several facilities do not have a sufficient number of eligible-aged animals to test in order to obtain MQ status. In fact, several facilities will never be able to obtain MQ status because it is mathematically impossible for them to ever have enough eligible-aged animals for CWD testing, which is problematic because it leaves no option other than euthanization of all animals in the subject facility’s possession or possessing the animals until natural mortality occurs for the entire herd.

After considering recommendations of TPWD’s Breeder User Group and CWD Task Force, staff propose an amendment to allow permittees with an insufficient number of eligible-aged deer to potentially obtain MQ status by subjecting all eligible deer to two rounds of ante-mortem testing at an interval of at least 12 months, with all test results showing that CWD is “Not Detected.”

At the Commission Work Session meeting on January 23, 2019, the staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the February 15, 2019 issue of the Texas Register (44 TexReg 687).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts an amendment to §65.94, concerning Breeding Facility Minimum Movement Qualifications, and an amendment to §65.610, concerning Transfer of Breeder Deer, with changes as necessary to the proposed text as published in the February 15, 2019 issue of the Texas Register (44 TexReg 687).”

Attachments – 2

  1. Exhibit A – CWD Testing Provisions
  2. Exhibit B – Release Provisions

Commission Agenda Item No. 3
Exhibit A

DEER BREEDER REGULATIONS - TESTING PROVISIONS
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification.

        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. The department is aware that there are several facilities that did not test the minimum number of eligible-aged mortalities, or at least 3.6 percent of the eligible aged population in the breeding facility, to maintain MQ status and currently do not have a sufficient number of eligible-aged animals to ante-mortem test in order to regain MQ status. Moreover, some of those facilities will never be able to obtain MQ status because it is mathematically impossible for them to ever have enough eligible-aged animals for CWD testing at the level necessary to achieve sufficient confidence that CWD would be detected if present, which is problematic because it leaves no option other than euthanization of all animals in possession or waiting until natural mortality occurs for the entire herd, which can be quite costly to the permitted deer breeder.

        After considering recommendations of the department’s Breeder User Group and CWD Task Force, staff propose to allow permittees who possess an insufficient number of eligible-aged deer to potentially obtain MQ status for a facility by subjecting all eligible-aged deer to two rounds of ante-mortem testing at an interval of at least 12 months (beginning no earlier than 12 months following the department designating NMQ status for the facility and completing a herd inventory inspection), provided the facility has not received any exposed breeder deer (breeder deer that have been in a facility where CWD has been detected within the previous five years), there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory on file with the department, and all CWD test results are “Not Detected.”  The proposed amendment also includes provisions to account for testing of deer that are not old enough to be tested when testing begins within a facility but become eligible-aged during the 12-month testing interval and deer that do not reach eligible age during the 12-month testing interval, which is necessary to prevent affected facilities from an infinite regress scenario where the continual appearance of fawns makes compliance with the proposed amendment impossible. The department, after consultation with Texas Animal Health Commission (TAHC) and review of the best available data regarding the efficacy of ante-mortem testing modalities, has concluded that two rounds of whole-herd ante-mortem testing at an interval of at least 12 months in most cases will provide the department with confidence that CWD is not present in a given population. However, there are circumstances that could arise to create unique situations in which whole-herd testing events 12 months apart might not provide the desired epidemiological confidence. Therefore, the proposed amendment also would allow the department, following a facility’s compliance with the provisions of proposed subsection (f), to decline to designate that facility as MQ upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation would be required to be in writing and would be required to contain the specific rationale supporting the recommendation. The proposed amendment also would allow the department to include in the recommendation any specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation, following which the facility could be designated MQ.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the amendment as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

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 regimen that would 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.

        Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, email: mitch.lockwood@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, 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.

        The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapter L.

6. Rule Text.

        §65.94. Breeding Facility Minimum Movement Qualification.

                 (a) (No change.)

                 (b) A breeding facility that has been designated as NMQ for failure to comply with the testing requirements specified in subsection (a) of this section will be restored to MQ:

                         (1) when the required "not detected" test results prescribed by subsection (a) of this section are submitted; or

                         (2) the department has designated the breeding facility MQ under the provisions of subsections (f) or (g) of this section.

                 (c) – (e) (No change.)

                 (f) A breeding facility that is designated NMQ and is unable to satisfy the requirements of subsection (a) of this section to achieve MQ status may be designated MQ by the department, provided:  

                         (1) the facility has not received any exposed deer;

                         (2) there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory reported in TWIMS;

                         (3) the department has determined that the number of eligible-aged deer in the facility is not sufficient to provide the necessary ante-mortem test samples to substitute for post-mortem test results;

                         (4) a department herd inventory inspection has been completed prior to the initiation of any ante-mortem testing under paragraph (5) of this subsection;

                         (5) all eligible-aged deer in the facility are subjected to ante-mortem testing two times at an interval of not less than 12 months, beginning not less than 12 months from being designated NMQ, provided:

                                  (A) a deer that is not eligible-aged when testing under this begins but reaches eligible-aged status during the 12 -month interval stipulated by this paragraph is not required to be tested twice, but must be tested at least once during the 12-month interval stipulated by this paragraph. The test result must be “not detected”; and

                                 (B) a deer that is not eligible-aged when testing under this paragraph  begins and does not become eligible-aged during the 12-month interval stipulated by this paragraph  is not required to be tested;  and

                         (6) a test result of “not detected” for all tests required under paragraph (5) of this subsection is obtained and submitted for each eligible-aged deer in the facility.

                 (g) The department may decline to designate a facility as MQ under subsection (f) of this section upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation must:

                         (1) be in writing and articulate the specific rationale supporting the recommendation; and

                         (2) may include specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation.

                 (h) Upon the successful completion of any additional testing requirements stipulated in the recommendation required by subsection (g) of this section, the department may designate a facility MQ.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Commission Agenda Item No. 3
Exhibit B

DEER BREEDER RULES - RELEASE PROVISIONS
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §65.610, concerning Transfer of Breeder Deer. The proposed amendment would extend the period of time that breeder deer may be confined in a “soft release” enclosure at a release site prior to complete liberation.

        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. Current rules provide that with prior department authorization, breeder deer being transferred for purposes of release may be detained for not more than 30 days in an enclosure at the release site to allow the deer to become acclimated to surroundings and habitat (“soft release”).

        With the emergence of chronic wasting disease (CWD) in both captive and free-ranging deer populations in the state, the department is faced with a significant challenge. 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 at least some 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. 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.

        Under current rule, deer cannot be released from a “soft release” pen during an open season or the 10-day period immediately preceding an open season and Parks and Wildlife Code, §43.368, provides that during an open season or the 10-day period preceding an open season, buck breeder deer may be transferred only after having their antlers removed. The first day of the 10-day period prior to the open season is known colloquially as “antler-cutoff date.”

        The department’s CWD management rules allow the release of breeder deer only to high-fenced release sites. For epidemiological tracing purposes, the exact physical parameters of each release site must be known and registered with the department, which allows the department and Texas Animal Health Commission (TAHC) to document the location of every breeder deer that is liberated. Some release site owners have engaged in the practice of registering small high-fenced acreages within larger high-fenced acreages as release sites, using the smaller acreage as a de facto “extended soft release” pen (allowing deer to be detained for longer than the 30-day maximum for “soft releases” allowed by rule), and then amending the release site on file with the department when the deer are provided access to the larger surrounding acreage. This practice, if recurring at any site, is problematic for both the department and the regulated community because Texas Wildlife Information Management Services (TWIMS), the department’s automated data system, is not designed to reconcile repeated changes to the dimensions and identities of release sites at one location and because it is possible for release site owners to unintentionally trigger undesired CWD movement qualification standards. The department is not opposed in principle to allowing for some sort of extended “soft release” provisions, provided there is no conflict with Parks and Wildlife Code, §43.368, governing the removal of antlers from transferred bucks prior to hunting seasons.

        The proposed amendment would alter subsection (d) by reorganizing the current provisions and adding several new provisions. New provisions within paragraph (2) would create a longer time period for “soft release” and create a standard for what constitutes “release.” The proposed new provisions would allow deer to be temporarily held for any length of time between March 1 and the antler-cutoff date (ten days before the opening of the archery-only season for deer, which is the Saturday closest to September 30). This would maximize the available time between deer seasons for release site owners to acclimate deer. The other new provision within proposed new paragraph (2) would stipulate that “release” consists of the removal of at least 20 feet of the components of a pen that serve to maintain deer in a state of detention within the pen (provided no opening is less than 10 feet in width), and that all such components be removed for no fewer than 30 consecutive days. This provision is necessary to provide an objective standard and to prevent misunderstandings.

        Paragraph (2) of the proposed amendment also would retain current provisions requiring that authorization be obtained from the department prior to “soft release” activities, that “soft release” enclosures be physically separate from any deer breeding facility, that deer within a “soft release” enclosure not be commingled with breeder deer, that deer in a “soft release” enclosure may not be returned to any deer breeding facility, that the department will not authorize a “soft release” during an open hunting season, and that deer may not be hunted while in a “soft release” enclosure.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the amendment as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

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.

        There will be no 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, 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. Therefore, 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 expanding the length of time deer may be held in a “soft release” enclosure);

                 (6) not expand, 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.

        Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, email: mitch.lockwood@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, 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.

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter L.

6. Rule Text.

        §65.610. Transfer of Deer.

                 (a) – (c) (No change.)

                 (d) Release.

                         (1) The department may authorize the release of breeder deer for stocking purposes if the department determines that the release of breeder deer will not detrimentally affect existing populations or systems.

                         (2) Breeder deer lawfully transferred to a registered release site may be held in temporary captivity for any period of time from March 1 through the eleventh day immediately preceding an open deer season to acclimate the breeder deer to habitat conditions at the release site; however, such temporary captivity must be specifically authorized in writing by the department. Not later than 11:59 p.m. on the eleventh day immediately preceding an open deer season, all deer being held in temporary captivity under the provisions of this paragraph shall be released. Release shall consist of the removal of at least 20 feet of the components of a pen that serve to maintain deer in a state of detention within the pen; however, no opening shall be less than 10 feet in width. Such components shall be removed for no fewer than 30 consecutive days.

                                  (A) An enclosure used to temporarily detain deer under this paragraph shall be physically separate from any deer breeding facility and the deer being temporarily held shall not be commingled with breeder deer. Deer held in temporary captivity shall not be returned to any deer breeding facility.

                                  (B) The department will not authorize the detention of deer under this paragraph during an open hunting season.

                                  (C) Deer in temporary captivity under the provisions of this paragraph shall not be hunted while in temporary captivity.

                         [(1) The department may authorize the release of breeder deer for stocking purposes if the department determines that the release of breeder deer will not detrimentally affect existing populations or systems.]

                         [(2) Breeder deer lawfully purchased, possessed, or obtained for stocking purposes may be held in captivity for no more than 30 days:]

                                  [(A) to acclimate the breeder deer to habitat conditions at the release site;]

                                  [(B) when specifically authorized by the department;]

                                  [(C) if they are not hunted prior to release; and]

                                  [(D) if the temporary holding facility is physically separate from any deer breeding facility and the breeder deer being temporarily held are not commingled with breeder deer being held in a deer breeding facility. Breeder deer removed from a deer breeding facility to a temporary holding facility shall not be returned to any deer breeding facility. Except as provided in Parks and Wildlife Code, §43.363, no breeder deer shall be released from a temporary holding facility during an open season or the 10-day period immediately preceding an open season.]

                 (e) – (f) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on