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Executive Summary: Staff seeks adoption of proposed amendments to rules governing chronic wasting disease (CWD) detection, response, and management. The proposed amendments would function collectively to acknowledge and accommodate the decision of the Texas Animal Health Commission (TAHC) to cease cooperative efforts with Texas Parks and Wildlife Department (TPWD) with respect to the management of CWD in wildlife resources.
Resumen ejecutivo: El personal solicita la aprobación de enmiendas propuestas a las normas que regulan la detección, respuesta y gestión de la enfermedad crónica de desgaste (CWD). Las enmiendas propuestas funcionarían colectivamente para reconocer y acomodar la decisión de la Comisión de Salud Animal de Texas (TAHC) de cesar los esfuerzos cooperativos con el Departamento de Parques y Vida Silvestre de Texas (TPWD) respecto a la gestión de la CWD en los recursos de fauna.
DISEASE DETECTION AND RESPONSE RULES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§65.81, 65.88, 65.90, 65.91, 65.92, 65.94, 65.95, 65.97, 65.99, and 65.100, concerning Disease Detection and Response, and 65.610, concerning Deer Breeder Permits. The proposed amendments would function collectively to clearly define the areas of respective responsibility between the department and the Texas Animal Health Commission (TAHC) with respect to the management of chronic wasting disease (CWD) in Texas.
CWD is a fatal neurodegenerative disorder that affects some cervid species, including wildlife resources such as white-tailed deer and mule deer, but also exotic species such as 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. CWD is spread by prions (a misfolded protein that is the infectious agent) that other animals can acquire directly or indirectly via bodily fluids or contaminated environments. CWD prions are known to persist in soil, vegetation, water, and carcasses indefinitely and there is no practical method for denaturing them. Thus, 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.
The department has been concerned for over two decades about the emergence of CWD in free-ranging and captive populations of white-tailed and mule deer in Texas. The department is the primary state agency for the management and protection of native wildlife in the state, while TAHC is the state agency responsible for protecting animal agriculture (livestock and poultry) from disease and human health from zoonotic disease. Under Agriculture Code, §161.101(a)(6), CWD is a reportable disease and requires a veterinarian, veterinary diagnostic laboratory, or person having care, custody, or control of an animal to report the existence of CWD to TAHC within 24 hours after diagnosis. Because CWD can be transmitted between wildlife and farmed animals, there is an obvious nexus of interagency responsibilities in certain situations.
A central component of the joint strategy for CWD management was the department’s utilization of TAHC hold orders and quarantines as a regulatory mechanism for isolating and restricting the movement of infected or potentially infected animals. The proposed amendments would remove all references to TAHC (with exceptions as noted), hold orders, quarantines, and herd plans and replace references to hold orders, quarantines, and herd plans, as appropriate, with references to “disease management plan,” which is necessary to create and implement a similar mechanism administered solely by the department and applicable only to white-tailed and mule deer, which are the only two species of native wildlife that are susceptible to CWD.
The proposed amendment to §65.88, concerning Deer Carcass Movement Restrictions, in addition to conforming changes regarding TAHC mentioned earlier in this preamble, would extend the applicability of the section to all dead deer being transported (i.e., not just deer killed by hunting) reword subsection (a) for purposes of clarity, and add new subsection (b) to address the disposal of deer that die within breeding facilities. The disposal methods for deer that die within exposed and positive breeding facilities are currently addressed under TAHC herd plans; therefore, the department must stipulate those standards in department rules in order to prevent the spread of CWD from breeding facilities where it might or has been confirmed to exist. Additionally, the proposed amendment would require persons transporting carcasses of dead breeder deer to a landfill (if the deer are not interred in situ) to possess a completed disposition document on a form approved or supplied by the department, which would be required to accompany deer carcasses during transport and until the carcasses are accepted at the landfill. The proposed amendment is necessary to aid in law enforcement investigations, if necessary, by documenting deer that no longer bear the permanent identification required under Parks and Wildlife Code, Chapter 43, Subchapter L.
The proposed amendment to §65.90, concerning Definitions, consists of a number of related changes intended to address intra-agency roles in CWD management in wildlife contexts and to make clarifications and improvements to definitions used throughout the subchapter. The changes are necessary to prevent misunderstandings and standardize the applicability of various specialized terms.
The proposed amendment would add new paragraph (14) to define “exposed facility” as “a facility that has received exposed deer,” and alter current paragraphs (29) and (45) to make those provisions applicable to all types of facilities and not just to deer breeding facilities. The current rule defines “exposed deer” and “exposure” but does not explicitly address facilities that contain exposed deer. The current definitions in paragraphs (29) and (45) reflect the division of labor with respect to the former role of TAHC in CWD management. Because TAHC hold orders and quarantines will no longer be issued for premises on the basis of CWD in wildlife populations, the affected definitions must be made applicable to all facilities (rather than just to breeding facilities) to accommodate that fact.
The proposed amendment also would make several changes affecting terminology related to administrative mechanisms for authorizing the movement of breeder deer. In order to effectively and efficiently track the movement of breeder deer to and from deer breeders for purposes of law enforcement and disease investigations, the department created a specialized database commonly known as TWIMS, which allowed the automation of many permitting processes. Every location where breeder deer are kept or released is assigned a unique “facility ID” in TWIMS. Although the term “facility” has long been defined by rule to apply to any location required to be registered in TWIMS, the term has, for whatever reason, become synonymous with “deer breeding facility.” Similarly, although the terms “Movement Qualified” (current paragraph (26)) and “Non-Movement Qualified” (current paragraph (28)), under current rule apply only to breeding facilities, they have for whatever reason erroneously become understood to include movement authorizations for other types of facilities, which is technically and legally not the case. The terms were promulgated to reflect the binary opposition states (predicated on compliance with disease-testing requirements) necessary for TWIMS to allow or prevent the activation of a transfer permit that allows deer movement to and from deer breeding facilities or to other types of facilities; however, the terms have become so commonly used to refer to release locations that the department believes it is easier and more effective to simply alter the rules to expand the applicability of the terms to include all types of facilities. Along the same lines, the term “transfer permit” has long been defined in Chapter 65, Subchapter T, to mean the authorization for movement of breeder deer to or from any type of facility, some confusion has arisen as to whether “to or from” means “to and from” even though release locations are terminal destinations (i.e., the transfer permit in such cases is a permanent and final “one-way only” authorization of movement to a location from which the deer cannot ever be removed while still alive). Finally, the proposed amendment would replace the term “release site” (current paragraph (34)), with the term “release facility.” As discussed earlier in this preamble, every location where breeder deer are kept and every location where breeder deer are released are assigned a “facility ID” in TWIMS. To maintain continuity of terminology, the proposed amendments would remove all references to release sites and replace them with references to “release facility.”
The proposed amendment to §65.91, concerning General Provisions, would eliminate references to TAHC and replace the term “herd plan” with the term “disease management plan” for reasons previously discussed in this preamble. The proposed amendment to subsection (d) would address situations in which a premise is subject to TAHC movement restrictions because of CWD exposure in a susceptible species other than white-tailed deer or mule deer. The department has determined that because native cervids are susceptible species, allowing breeder deer to be moved from an exposed location represents an unacceptable risk of spreading CWD to native free-ranging and captive deer populations unless a determination based on the particulars of a given circumstance indicate that risk is either non-existent or acceptable. The proposed amendment also would alter subsection (e) to create an exception that would allow the transfer of deer to or from a facility designated NMQ if authorized under a disease management plan. The department has determined that there may be unforeseen situations in which compliance with a disease management plan provides epidemiological confidence that the transfer of deer by a facility otherwise not allowed to move deer can be allowed. Finally, the proposed amendment would alter subsection (f) to clarify that the provisions of the subsection apply to facilities where CWD has been confirmed as well as facilities where CWD is suspected to be present, which is necessary to address situations in which a facility nominally linked to a positive facility can be cleared following epidemiological investigation.
The proposed amendment to §65.92, concerning CWD Testing, would make conforming changes discussed previously in this preamble.
The proposed amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, would make conforming changes discussed previously in this preamble.
The proposed amendment to §65.95, concerning Movement of Breeder Deer, makes conforming changes as discussed previously in this preamble and would stipulate that changes in land ownership do not affect the status of a property as a trace-out release site. The department has determined that because CWD is an existential threat to native wildlife, it is necessary to eliminate the potential for unscrupulous persons to evade disease-management obligations by way of real estate transactions.
The proposed amendment to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, would make conforming changes discussed previously in this preamble.
The proposed amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities, would make conforming changes discussed previously in this preamble.
The proposed amendment to §65.100, concerning Violations and Penalties, would make conforming changes discussed previously in this preamble.
The proposed amendment to §65.610, concerning Transfer of Deer, would make conforming changes discussed previously in this preamble.
Robert Macdonald, Regulations Coordinator, 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.
Mr. Macdonald also has determined that for each of the first five years the amendments as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the continued efficacy of department efforts to prevent the spread of CWD from locations where it does or has a reasonable probability to 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.
(C) Under 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), 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, micro-businesses, and rural communities. 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.
Government Code, §2006.001(1), defines a small or micro-business as a legal entity "formed for the purpose of making a profit" and "independently owned and operated." A micro-business is a business with 20 or fewer employees. A small business is defined as a business with fewer than 100 employees, or less than $6 million in annual gross receipts. The department has determined that the proposed rules will not result in direct economic costs to small businesses and microbusinesses.
The department has determined that the proposed rules will not affect rural communities because the rules do not directly regulate any rural community.
(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 result in direct impacts to 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. 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 rule.
(G) 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) not create a new regulation or repeal an existing regulation, but will modify existing rules to accommodate the cessation of TAHC involvement in the management of CWD efforts with respect to native wildlife;
(6) not increase the number of individuals subject to regulation; and
(7) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rules may be submitted to Kory Gann, Big Game Program Director, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4363, (e-mail: kory.gann@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendments 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; Subchapters R and R-1, which authorize the commission to establish the conditions of a deer management permit for white-tailed and mule deer, respectively; 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 affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.
6. Rule Text.
§65.81. Risk Mitigation Provisions. (a) (No change.)
(b) Breeder Deer.
(1) – (7) (No change.)
(8) Deer that escape from a breeding facility any part of which is within five linear miles of a location where CWD has been detected in a free-range white-tailed deer or susceptible species, or within 25 linear miles of a location where CWD has been detected in a free-range mule deer, may not be recaptured and/or returned to a breeding facility except as expressly authorized in writing by the department or in a disease management[herd] plan.
(9) (No change.)
(c) (No change.)
§65.88. Deer Carcass Movement Restrictions.
(a) In addition to the provisions of §65.10 of this title (Possession of Wildlife Resources) and except as may be otherwise prohibited by this subchapter or a disease management plan, a dead white-tailed deer, mule deer, or susceptible species (or parts thereof) may be transported into or within this state from the location where the animal was killed or found, provided the[, a department herd plan, or a quarantine or hold order issued by TAHC, a white-tailed deer or mule deer or part of a white-tailed or mule deer killed in this state or a susceptible species or part of a susceptible species harvested outside of Texas may be transported from the location where the animal was killed as provided in this section. The] parts of the animal not retained for cooking, storage or taxidermy purposes are[shall be] disposed of as quickly as practicable by one of the following methods:
(1) – (3) (No change.)
(b) A white-tailed deer or mule deer that dies in an exposed breeding facility or positive breeding facility must be disposed of only as provided in subsection (a)(1) or (2) of this section. If a breeder deer is disposed of as provided in subsection (a)(1) of this section, a completed disposition document on a form provided or approved by the department must accompany the carcass(es) to the landfill and remain with the possessor until the carcass(es) has/have been accepted by the landfill.
(c)[(b)] The rendering of carcass parts is not a lawful method of disposal.
(d)[(c)] The carcass of a white-tailed or mule deer may be deboned at any location prior to transportation to a final destination, provided:
(1) – (6) (No change.)
(e)[(d)] It is an offense for any person to dispose of those parts of an animal that the possessor does not retain for cooking, storage, or taxidermy purposes except as follows:
Issued in Austin, Texas, on
§65.90. Definitions. The following words and terms shall have the following meanings, except in cases where the context clearly indicates otherwise.
(1) – (11) (No change.)
(12) Disease management plan--A set of requirements for disease testing and management developed by the department.
(13)[(12)] Exposed deer — A deer that meets any of the following criteria:
(A) – (C) (No change.)
(14) Exposed facility—A facility that has received an exposed deer.
(15)[(13)] Exposure — The period of time that has elapsed following the introduction of an exposed deer to a breeding facility.
(16)[(14)] Facility — Any location required to be registered in TWIMS under a deer breeder’s permit, Triple T permit, TTP permit, or DMP, including release sites and/or trap sites.
(17)[(15)] Free-range deer — A deer that is not a breeder deer.
[(16) Herd Plan--A set of requirements for disease testing and management developed by the department and TAHC.]
(18)[(17)] Hunter-harvested deer — A deer required to be tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).
(19)[(18)] Hunting year — That period of time between September 1 and August 31 of any year when it is lawful to hunt deer under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).
(20)[(19)] Inconclusive — A test result that is neither "positive" nor "not detected" on the basis of clinical deficiency.
(21)[(20)] "Insufficient follicles" — A test result indicating that a tonsil or rectal biopsy sample contained an insufficient number of lymphoid follicles to produce a valid test result.
(22)[(21)] Landowner (owner) — Any person who has an ownership interest in a tract of land and includes landowner’s authorized agent.
(23)[(22)] Landowner’s authorized agent (agent) — A person designated by a landowner to act on the landowner’s behalf.
(24)[(23)] Last known exposure — The last date a deer in a trace-out or trace-in breeding facility was exposed to a trace deer prior to the death or transfer of that trace deer.
(25)[(24)] Liberated deer — A free-ranging deer that bears evidence of having been a breeder deer, including, but not limited to, a tattoo (including partial or illegible tattooing), or evidence of having been eartagged at any time (holes, rips, notches, etc. in the ear tissue), electronic identification devices, or any other signs that the deer was at any time a breeder deer.
(26)[(25)] Location of detection — The exact geographic location, to the extent that it can be determined, at which a deer or susceptible species confirmed to be positive for CWD died.
(27)[(26)] Movement Qualified (MQ) — A designation made by the department pursuant to this division that allows:
(A) a deer breeder to [lawfully] transfer breeder deer to another facility; or
(B) a facility to receive breeder deer.
(28)[(27)] Not available/unavailable for testing — For a Category B trace-out deer breeding facility, a deer that is no longer present in a facility and cannot be found or the whereabouts of which are otherwise unknown.
(29)[(28)] Not Movement Qualified (NMQ) — A designation made by the department pursuant to this division that prohibits:
(A) the transfer of deer by a deer breeder; or
(B) a facility from receiving breeder deer.
(30)[(29)] Positive [breeding] facility — A [deer breeding] facility where CWD has been confirmed to exist.
(31)[(30)] Post-mortem test — A CWD test performed on a dead deer.
(32)[(31)] Properly executed — A form or report required by this division on which all required information has been entered.
(33)[(32)] Reconciled herd — The breeder deer held in a breeding facility for which every birth, mortality, and transfer of breeder deer has been accurately reported as required by this division.
(34)[(33)] Release — The act of liberating a deer from captivity. For the purposes of this division the terms "release" and "liberate" are synonymous.
(35)[(34)] Release facility[site] — A specific tract of land to which deer are released, including the release of deer under the provisions of this chapter or Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, or R-1.
(36)[(35)] Reporting year — For a deer breeder’s permit, the period of time from April 1 of one calendar year through March 31 of the next calendar year.
(37)[(36)] RFID tag — A button-type ear tag conforming to the 840 standards of the United States Department of Agriculture’s Animal Identification Number system.
(38)[(37)] Submit — When used in the context of test results, provided to the department, either directly from a deer breeder or via an accredited testing laboratory.
(39)[(38)] Susceptible species — Any cervid species or part of a cervid species that is susceptible to CWD.
(40)[(39)] Suspect — An initial CWD test result of "detected" that has not been confirmed.
(41)[(40)] TAHC — Texas Animal Health Commission.
(42)[(41)] Test-eligible —
(A) – (B) (No change.)
(43)[(42)] Test, Test Result(s), or Test Requirement — A CWD test, CWD test result, or CWD test requirement as provided in this division.
(44)[(43)] Trace deer — A deer that the department has determined had been in a CWD-positive deer breeding facility on or after the date the facility was first exposed to CWD, if known; otherwise, within the previous five years from the reported mortality date of the CWD-positive deer, or the date of the ante-mortem test result.
(45)[(44)] Trace-in breeding facility — A breeding facility that meets either of the following criteria:
(46)[(45)] Trace-out [breeding] facility — A breeding or release facility that has received an exposed deer that was in a CWD-positive deer breeding facility.
(47) Transfer—The movement of breeder deer under a transfer permit executed as provided in Subchapter T of this chapter:
(A) from or to another breeding facility; or
(B) from a breeding facility to another type of facility.
(48)[(46)] Trap Site — A specific tract of land approved by the department for the trapping of deer under this chapter and Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.
(49)[(47)] Triple T permit — A permit to trap, transport, and transplant white-tailed or mule deer (Triple T permit) issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds).
(50)[(48)] Trap, Transport and Process (TTP) permit — A permit issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds), to trap, transport, and process surplus white-tailed deer (TTP permit).
(51)[(49)] TWIMS — The department’s Texas Wildlife Information Management Services (TWIMS) online application.
(52)[(50)] Whole-herd test — The administration of an ante-mortem test to the entirety of test-eligible deer in the inventory of a breeding facility.
§65.91. General Provisions. (a) – (b) (No change.)
(c) Except as provided in this division or as expressly authorized and in accordance with the provisions of a disease management[herd] plan, [no person shall transfer deer to or from] any facility for which a CWD test result of "suspect" or "positive" has been obtained from an accredited testing laboratory, irrespective of how the sample was obtained or who collected the sample, is automatically NMQ and the[The] provisions of this subsection take effect immediately [upon the notification of a CWD "suspect" test result, and continue in effect until the department expressly authorizes the resumption of permitted activities at that facility].
(d) Notwithstanding any provision of this division, no person may cause or allow breeder deer to be transferred from a facility subject to[moved from a facility for any purpose if such movement is prohibited by a herd plan associated with] a TAHC hold order or TAHC quarantine applicable to a trace susceptible species unless specifically authorized to do so under a disease management plan or the department has authorized movement following an epidemiological assessment.
(e) No person may transfer deer to or from a facility that has been designated NMQ by the department unless:
(A) specifically authorized by the department for the holder of a scientific research permit when the proposed research is determined to be of use in advancing the etiology of CWD in susceptible species; or
(B) authorized by a disease management plan.
(f) Immediately upon the notification that a facility has received a CWD "suspect" test result (a CWD-suspect facility) or a CWD “positive” test result (a CWD-positive facility), all facilities that have received[that have been in possession of] a deer [that was] held in or transferred to the [CWD suspect] facility within the previous five years shall be designated NMQ by the department until it is determined that the facility is not epidemiologically linked to the CWD-suspect or CWD-positive[CWD suspect] deer, or it is determined upon further testing that the "suspect" deer is not a confirmed positive.
(g) – (i) (No change.)
§65.92. CWD Testing.
(a) (No change.)
(b) Except as provided in §65.95(c)(7) of this title (relating to Movement of Breeder Deer) or subsection (d) of this section, an ante-mortem CWD test is not valid unless it is performed by an accredited laboratory on retropharyngeal lymph node, rectal mucosa, or tonsillar tissue with at least six lymphoid follicles collected within eight months of submission by a licensed veterinarian authorized pursuant to statutes and regulations governing the practice of veterinary medicine in Texas [and regulations of the TAHC] from a live deer that:
(1) — (2) (No change.)
(c) – (j) (No change.)
(k) Upon notification by the department that CWD is suspected or confirmed in a deer as a result of ante-mortem testing in a facility, the facility is automatically NMQ and the permittee shall:
(l) (No change.)
§65.94. Breeding Facility Minimum Movement Qualification.
(a) Notwithstanding any other provision of this division, a breeding facility is designated NMQ and is prohibited from transferring breeder deer anywhere for any purpose if the breeding facility:
(1) (No change.)
(2) is not authorized pursuant to a disease management plan[herd plan associated with a TAHC hold order or TAHC quarantine];
(3) — (4) (No change.)
(b) – (d) (No change.)
(e) The department may decline to designate a facility as MQ under subsection (d) of this section:
(2) upon the recommendation of a licensed veterinarian or epidemiologist employed by the department [or TAHC]. The recommendation must:
(A) — (B) (No change.)
(f) – (i) (No change.)
§65.95. Movement of Breeder Deer.
(a) – (b) (No change.)
(c) Release Facilities [Sites]; Release of Breeder Deer.
(1) An approved release facility[site] consists solely of the specific tract of land to which deer are released and the acreage is designated as a release facility[site] in TWIMS. A release facility[site] owner may modify the acreage registered as the release facility[site] to recognize changes in acreage (such as the removal of cross-fencing or the purchase of adjoining land), so long as the release facility[site] owner notifies the department of such modifications prior to the acreage modification. The release facility[site] requirements set forth in this division apply to the entire acreage modified under the provisions of this paragraph.
(2) Liberated breeder deer must have complete, unrestricted access to the entirety of the release facility[site]; provided, however, deer may be excluded from areas for safety reasons (such as airstrips) or for the purpose of protecting areas such as crops, orchards, ornamental plants, and lawns from depredation.
(3) All release facility[sites] onto which breeder deer are liberated must be surrounded by a fence of at least seven feet in height that is capable of retaining deer at all times under reasonable and ordinary circumstances. The owner of the release facility[site] is responsible for ensuring that the fence and associated infrastructure retain deer under reasonable and ordinary circumstances.
(4) The department will not authorize the liberation of breeder deer at a release facility[site] registered in TWIMS following the effective date of this subsection unless the owner of the release facility[site] submits to the department a letter of endorsement by a person authorized by the department to conduct fence inspections under the provisions of §65.603 of this title (relating to Application and Permit Issuance) stating that the person has personally conducted an on-site inspection at the release facility identified in the application and affirming that the release facility[site] is surrounded by a perimeter fence meeting the requirements of paragraph (3) of this subsection. This paragraph does not apply to release facility[sites] that have received deer prior to the effective date of this paragraph. It is an offense for any person the department has authorized as a facility inspector to submit the letter of endorsement required by this paragraph if the person has not personally conducted an onsite inspection at the facility.
(5) No person may intentionally cause or allow any live deer to leave or escape from a release facility[site] onto which breeder deer have been liberated.
(6) The owner of a release facility[site] where deer from a facility subject to the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities) or deer from a CWD-positive facility have been released shall maintain a harvest log at the release facility[site] that complies with §65.93 of this title (relating to Harvest Log).
(7) No person may transfer a breeder deer to a release facility or cause or allow a breeder deer to be transferred to a release facility unless:
(C) the deer bears the identification prescribed by Parks and Wildlife Code, §43.3561, and any applicable disease management[herd]plan.
(D) – (F) (No change.)
(d) Trace-out Release Facility[Site].
(1) A release facility[site] is a trace-out release facility [site] if it has[:]
[(A)] received trace deer directly or indirectly from a positive breeding facility, unless the department has determined that the landowner of the release facility has satisfied the requirements of a disease management plan for the property[; and]
[(B) it has not been released from a hold order or quarantine related to activity described in subparagraph (A) of this paragraph].
(2) The landowner of a trace-out release facility[site] must:
(A) within 60 days of notification by the department that trace-out release status has been confirmed, remove every trace deer at the release facility[site], either by lawful hunting or as specifically authorized in writing by the department (or both), and submit post-mortem CWD samples for each deer within seven days of mortality; and
(B) submit post-mortem CWD test results for 100 percent of all hunter-harvested deer until the department is confident that CWD is not present at the release facility[site] or as prescribed in a disease management[herd] plan.
(3) No breeder deer may be transferred to a trace-out release facility[site] unless the deer has been tagged in one ear with a button-type RFID tag approved by the department.
(4) A change in ownership of a tract of land does not affect the status of the property as a trace-out release site for the purposes of this subchapter.
(e) The owner of a trace-out release facility[site] that is not in compliance with applicable provisions of this division is ineligible for enrollment or continued participation in the Managed Lands Deer Program under Subchapter A of this chapter.
§65.97. Testing and Movement of Deer Pursuant to a Triple T or TTP Permit. (a) General.
(1) – (2) (No change.)
(3) In addition to the reasons for denying a Triple T permit as provided in §65.107 of this title (relating to Permit Application and Processing) and §65.109 of this title (relating to Issuance of Permit), the department will not issue a Triple T permit if the department determines, based on epidemiological assessment, [and consultation with TAHC]that to do so would create an unacceptable risk for the spread of CWD.
(4) – (7) (No change.)
(b) – (c) (No change.)
§65.99. Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities. (a) (No change.)
(b) No deer from a facility subject to the provisions of this section may be transferred or liberated except as provided in this section or expressly authorized in a disease management[herd] plan and then only in accordance with the provisions of this division and the disease management[herd] plan.
(d) Category A trace-out breeding facility.
(4) The department [in consultation with TAHC] may decline to authorize a custom testing plan under subsection (h) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.
(5) (No change.)
(e) Category B trace-out breeding facility.
(1) – (4) (No change.)
(5) The department [in consultation with TAHC] may decline to authorize a custom testing plan under subsection (h) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.
(6) (No change.)
(f) The department shall, provided the provisions of this subchapter do not otherwise prevent restoration of MQ status, restore MQ status to a breeding facility that has been designated NMQ under the provisions of subsection (e) of this section as provided in this paragraph.
(1) MQ status may be restored for a facility in which all trace deer available for testing are tested in accordance with subsection (e) of this section and trace deer unavailable for testing were received by the trace facility less than 36 months prior to the date of detection in the positive breeding facility, provided:
(A) – (D) (No change.)
(E) Compliance with the requirements of this subsection does not relieve any person of any obligation or requirement of a disease management[herd] plan.
(2) MQ status may be restored for a facility in which:
(g) Trace-in breeding facility. Immediately upon notification by the department of trace-in facility status, a facility is automatically NMQ.
(4) The department [in consultation with TAHC] may decline to authorize a custom testing plan under subsection (g) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.
(h) Custom Testing Plan. Within seven days of being notified by the department that a breeding facility has been designated a Category A, Category B, or trace-in facility, a permittee may, in lieu of meeting the applicable testing requirements of subsections (d) — (g) of this section, request the development of a custom testing plan by the department [in consultation with TAHC] based upon an epidemiological assessment conducted by the department [and TAHC. A custom testing plan under this subsection is not valid unless it has been approved by the department and TAHC].
(1) – (5) (No change.)
(i) Positive Facility.
(1) Upon notification by the department that CWD is suspected in a deer in a facility, the facility is automatically NMQ and the permittee shall:
(D) euthanize all trace deer within seven days of confirmation of the positive test result, unless authorized by the department or in a disease management [herd] plan;
(E) – (F) (No change.)
(2) Unless otherwise provided in writing by the department, a permittee must enter into a disease management[herd] plan within six months of being designated a positive facility or agree to conduct a depopulation of the breeder deer within the facility.
(3) Fencing meeting the specifications in §65.605 of this title shall be installed around a positive facility no later than the completion of the disease management[herd] plan and removal of a quarantine unless the owner of the facility conducts a complete depopulation of the breeder deer.
§65.100. Violations and Penalties. (a) A person who violates a provision of this division or a condition of a deer breeder’s permit, DMP, Triple T permit, TTP permit, disease management[herd] plan, or custom testing plan commits an offense and is subject to the penalties prescribed by the applicable provisions of the Parks and Wildlife Code.
(b) [A person who possesses or receives white-tailed deer or mule deer under the provisions of this division and/or Subchapters C, D, or T of this chapter is subject to the provisions of TAHC regulations at 4 TAC Chapter 40 (relating to Chronic Wasting Disease) that are applicable to white-tailed or mule deer].
[(c)] A person who fails to comply with a provision of this division or a condition of a deer’s breeder permit, DMP, Triple T permit, TTP permit, disease management[herd] plan, or custom testing plan may be prohibited by the department from future permit eligibility or issuance.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
The amendment is 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.
§65.610. Transfer Permits.
(a) – (d) (No change.)
(e) Release.
(1) – (4) (No change,)
(5) It is an offense for any person to:
(A) release, cause, allow, or participate in the release of a breeder deer that does not bear the identification prescribed by Parks and Wildlife Code, §43.3561, and any applicable disease management[herd] plan; or
(B) (No change.)
Disease Detection And Response Rules
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