Commission Agenda Item No. 6
Presenter: Mitch Lockwood

Action
Chronic Wasting Disease Detection and Response Rules
Containment and Surveillance Zone Boundaries
August 26, 2021

I.      Executive Summary:  With this item, the staff seeks adoption of proposed amendments to rules establishing disease management zones for the control of chronic wasting disease (CWD). The proposed amendments would:

• create a new Containment Zone (CZ) and Surveillance Zone (SZ) in portions of Lynn, Lubbock, Garza, and Crosby counties in response to the discovery of CWD in a free-ranging mule deer;
• create a new SZ in portions of Hunt, Kaufman, Rockwall, and Van Zandt counties in response to the discovery of CWD in a deer breeding facility; and
• modify an existing SZ in Uvalde County in response to the discovery of CWD in multiple deer in a deer breeding facility.

II.     Discussion:  On February 26, 2021, the Texas Parks and Wildlife Department (TPWD) received confirmation that a free-ranging mule deer in the Texas Panhandle had tested positive for CWD.  On March 29, 2021, TPWD received confirmation that a 2.5-year-old white-tailed doe in a deer breeding facility in Hunt County and multiple white-tailed deer (four bucks and one doe, ranging from 1.5 years of age to 3.5 years of age) within a deer breeding facility in Uvalde County had tested positive for CWD. The proposed rules would establish a new CZ and new SZs in response to those discoveries, as appropriate. The TPWD staff notes that epidemiological investigations of movements into and out of the affected deer breeding facilities are ongoing, and that additional zone designations are possible and will be discussed at the time of the meeting if necessary.

At the Commission Work Session meeting on May 26, 2021, the staff was authorized to publish the proposed rule in the Texas Register for public comment.  The proposed rule appeared in the July 23, 2021 issue of the Texas Register (46 TexReg 4444).  A summary of public comment on the proposed rule will be presented at the time of the hearing.

III.   Recommendation:  The staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §65.154, concerning Issuance of Permit; Amendment and Renewal, with changes as necessary to the proposed text as published in the July 23, 2021 issue of the Texas Register (46 TexReg 4444).”

Commission Agenda Item No. 6
Exhibit A

DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §65.81 and §65.82, concerning Disease Detection and Response. The proposed amendments would establish one containment zone (CZ), modify an existing surveillance zone (SZ), and establish two new SZs as a result of the discovery of CWD-positive deer in various parts of the state.

        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 (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). 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 engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD is confirmed, within which the possession and movement of live deer under department permits is restricted and harvested deer are required to be presented at check stations to be tested for CWD.

        On February 26, 2021, the department received confirmation that a free-ranging mule deer in the Texas Panhandle had tested positive for CWD.  On March 29, 2021, the department received confirmation that a 2.5-year-old white-tailed doe in a deer breeding facility in Hunt County and multiple white-tailed deer (four male, one female, ranging from 1.5 years of age to 3.5 years of age) within a deer breeding facility in Uvalde County had tested positive for CWD. The proposed rules would establish a new CZ, modify an existing SZ, and create new SZs in response to those discoveries.

        The proposed amendment to §65.81, concerning Containment Zones; Restrictions, would create new CZ 5 in a portion of Lubbock County. A CZ is a specific location in which CWD has been detected or the department has determined, using the best available science and data, that CWD detection is probable. With respect to the CZ that would be established by this rulemaking, the department assumes the highest probability of additional detection exists within approximately a five-mile radius from the approximate location where CWD is detected in a free-ranging deer. Although the CZ designation imposes mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer, it is not necessary for hunters to be aware of or concerned with CZ boundaries, since the CZ is wholly within an SZ where mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer also apply. This rulemaking does not create a CZ in response to the discovery of CWD-positive deer in deer breeding facilities in Hunt or Uvalde counties because deer breeding facilities are required by law to be designed and built to prevent the free movement of deer, which is imperative for the control and management of CWD and affords some confidence that CWD within such facilities is contained within those facilities. Second, deer breeding facilities where CWD was discovered are operating under a Texas Animal Health Commission quarantine, which restricts deer movement, and are subject to a herd plan that requires CWD testing at an equal or higher level to what is required in a CZ.

        The proposed amendment to §65.82, concerning Surveillance Zones; Restrictions, would create new SZ 6 in portions of Lynn, Lubbock, Crosby, and Garza counties, modify existing SZ 3, and create new SZ 7 in portions of Hunt, Rockwall, Kaufman, and Van Zandt counties. A SZ is a department-defined geographic area in this state within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected. The SZ in the Texas Panhandle is a buffer around proposed new CZ 5; the other SZs created by this rulemaking would be smaller because the detections triggering their creation occurred in deer breeding facilities (i.e., within a confined herd).

        Within CZs and SZs, the movement of live deer is restricted and presentation of harvested deer at department check stations is mandatory. In addition, deer carcass movement restrictions set forth in §65.88 of Subchapter B, Division 1 apply to deer harvested within a CZ or SZ. The boundaries of the proposed CZ and SZs have been tailored to as much as possible follow recognizable features such as roadways, water bodies, and county boundaries, and the department notes that any designation of a CZ or SZ is always accompanied by a robust public awareness effort.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

        Mr. Silovsky 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 a reduction of the probability of CWD being spread from locations where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

        (B) There could be adverse economic impact on persons required to comply with the rules as proposed. Such impacts would be identical to those described in the analysis of the rules’ potential effect on small businesses, microbusinesses, and rural communities elsewhere in this preamble.

(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, 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. 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.

For the purposes of this analysis, the department considers all deer breeders to be small or microbusinesses, which ensures that the analysis captures all deer breeders possibly affected by the proposed rulemaking. The department has determined that there are five deer breeding facilities within the proposed zones — three in SZ 3 and two in SZ 7. Three of those facilities hold Transfer Category (TC) 1 transfer status, which under current rule would allow them to continue to be the source of or destination for transfers even though they are located within an  SZ; however, because one of those facilities accepted deer directly from another facility where CWD has been detected, it has been designated Non Movement Qualified (NMQ) and is therefore prohibited from receiving or transferring deer under other department rules in Chapter 65, Subchapter B. The remaining TC 1 facility would not be affected by the proposed rule, assuming TC 1 status is maintained. The remaining facilities (both in SZ 3) hold TC 2 status. Under current rules a TC 2 facility located within in a SZ may receive deer from any facility in the state that is authorized to transfer deer and may transfer deer to a breeding facility or release site that is within the same SZ, but is prohibited from transferring deer to any facility outside of the SZ. Therefore, two facilities potentially would be affected by the proposed modification of SZ 3, if those breeders desired to transfer deer to or receive deer from facilities outside the SZ.

        The department does not require deer breeders to report financial information such as sales volume, income, or pricing; thus, it is impossible for the department to estimate the value of such lost sales, although based on anecdotal reports it could be anywhere from many hundreds of dollars to several thousand dollars. The adverse economic impact to the affected breeder would consist of the loss of any sales to deer breeders or release sites outside the SZ. The department notes, however, that because deer breeders are required to report the sites where breeder deer are released or transferred, it is possible to estimate adverse economic impacts on the basis of individual breeders’ transfer history. The permittee in SZ 3 that is both TC 2 and Movement Qualified (MQ) currently has a reported inventory of zero deer and has reported no transfers in or out within the last five years and a total of 52 transfers since 2009 (the total life of the permit), all of which were to release sites owned by the permittee, indicating that the transfers were private stocking efforts and not a result of commercial transactions.

        The department notes that the permittee operating the affected TC 2 breeding facility in SZ 3 can take advantage of testing options available under current rules that would allow it to attain TC 1 status, in which case the transfer of deer to destinations outside the SZ would be allowed under current rules. TC 2 breeding facilities may obtain TC 1 status by providing “not detected” ante-mortem CWD test results for at least 50 percent of eligible-aged deer in the facility’s inventory.  The department estimates the cost of ante-mortem testing is less than $200 per animal.

        In the development of the proposed rules the department considered several alternatives to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

        One alternative was to do nothing. This alternative was rejected because the discovery of CWD within five miles of another facility increases the concern that CWD may have escaped containment. Therefore, because the department has a statutory duty to protect and conserve the wildlife resources of the state, doing nothing would not only be contrary to the goal of the rule, but would constitute abnegation of the department’s statutory duty.

        Another alternative considered was to allow TC 2 facilities within a SZ that are MQ but not epidemiologically connected to the positive facility to continue to transfer deer out of the SZ. While this alternative would reduce potential negative economic impacts, it would also have the effect of significantly increasing the potential for the spread of CWD from the SZ, which, as noted previously in this preamble, is an area in which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected.

        The department also considered allowing TC 2 facilities within a SZ that are MQ to transfer deer out of the SZ following some sort of live animal testing at appropriate intervals. This alternative was rejected because the department determined that it would be more problematic and expensive than performing the testing necessary under current rules to achieve TC 1 status.

        The department has determined that the proposed rules will not affect rural communities.

        (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 new rules. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.

        (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;

                 (6) expand an existing regulation (by creating new areas subject to the rules governing CZs and SZs), but will otherwise 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 proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments 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. Containment Zones; Restrictions. The areas described in paragraph (1) of this section are CZs.

                 (1) Containment Zones.

                         (A) – (D) (No change.)

                         (E) Containment Zone 5: That portion of the state within the boundaries of a line beginning at the intersection of County Road (C.R.) 3600 and E. Division St. in Slaton in Lubbock County; thence west along E Division St. to S. New Mexico St.; thence northwest along S. New Mexico St. to Railroad Ave.; thence northwest along Railroad Ave. to Industrial Dr.; thence northwest along Industrial Dr.to U.S. Highway (U.S.) 84; thence northwest along U.S. 84 to State Highway (S.H.) Spur 331; thence northwest along S.H. 331 to S.H. Loop 289; thence north along S.H. Loop 289 to Farm to Market (F.M.) 40 ; thence east along FM 40 to C.R. 3650; thence south along C.R. 3650 to C.R. 6840; thence east along C.R. 6840 to C.R. 3700; thence south along C.R. 3700 to C.R. 3600; thence south along C.R. 3600 to E. Division St.

                         (F)[(E)] Existing CZs may be modified and additional CZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

                 (2) (No change.)

        §65.82. Surveillance Zones; Restrictions. The areas described in paragraph (1) of this section are SZs.

                 (1) Surveillance Zones.

                         (A) – (B) (No change.)

                         (C) Surveillance Zone 3. That portion of the state not within the CZ described in §65.81(1)(C) of this title (relating to Containment Zones; Restrictions) lying within a line beginning the intersection of F.M. 1250 and U.S. Highway 90 in Hondo in Medina County; thence west along U.S. Highway 90 to F.M. 1574 in Uvalde County; thence south along F.M. 1574 to F.M. 1023 (Garner Field Road); thence west along F.M. 1023 to County Road 373; thence south along County Road 373 to County Road 374; thence west along County Road 374 to F.M. 140; thence northwest along F.M. 140 to F.M. 117; thence north along F.M. 117 to U.S. Highway 83; thence southwest along U.S. Highway 83 to F.M.  1435; thence north along F.M. 143 to U.S. Highway 90; thence west along U.S. Highway 90 to F.M. 2369; thence northwest along F.M. 2369 to F.M. 1403; thence north along F.M. 1403 to State Highway 55; thence northwest along S.H. 55 to Indian Creek Road; thence northeast along Indian Creek Road to Lower Frio Ranch Road; thence southeast along Lower Frio Ranch Road to Deep Creek; thence southeast along Deep Creek to the U.S. Highway 83; thence north along U.S. Highway 83 to State Highway 127 in Concan; thence southeast along State Highway 127 to the Sabinal River in Uvalde County; thence north along the Sabinal River to F.M. 187; thence north along F.M. 187 to F.M. 470 in Bandera County; thence east along F.M. 470 to Tarpley in Bandera County; thence south along F.M. 462 to 18th Street in Hondo; thence east along 18th Street to State Highway 173; Thence south along State Highway 173 to U.S. Highway 90 ; thence west along U.S. Highway 90 to Avenue E (F.M. 462); thence south along Avenue E (F.M. 462) to F.M. 1250; thence west along F.M 1250 to U.S. Highway 90.[That portion of the state not within the CZ described in §65.81(1)(C) of this title (relating to Containment Zones; Restrictions) lying within a line beginning at U.S. 90 in Hondo in Medina County; thence west along U.S. Highway 90 to the Sabinal River in Uvalde County; thence north along the Sabinal River to F.M. 187; thence north along F.M. 187 to F.M. 470 in Bandera County; thence east along F.M. 470 to Tarpley in Bandera County; thence south along F.M. 462 to U.S. 90 in Hondo.]

                         (D) – (E) (No change.)

                         (F) Surveillance Zone 6:  That portion of the state within the boundaries of a line beginning at the intersection of State Highway (S.H.) 207 and Farm to Market (F.M.) 211 in Garza County; thence west along F.M. 211 to U.S. Highway (U.S.) 87 in Lynn County; thence north along U.S. 87 to F.M. 41 in Lubbock County; thence west along F.M. 41 to F.M. 179; thence north along F.M. 179 to F.M. 2641; thence east along F.M. 2641 to U.S. 62/82; thence east along U.S. 62/82 to S.H. 207 in Crosby County; thence south along S.H. 207 to F.M. 211 in Garza County.

                         (G) Surveillance Zone 7: That portion of the state lying within the boundaries of a line beginning at the intersection of S.H. 205 and U.S. Hwy. 80 in Kaufman County; thence east along U.S. 80 to North 4th Street in Wills Point in Van Zandt County; thence north along North 4th Street to F.M. 751; thence north along F.M. 751 to the south shoreline of Lake Tawakoni in Hunt County; thence west and north along the Lake Tawakoni shoreline to the confluence of Caddo Creek; thence northwest along Caddo Creek to West Caddo Creek; thence northwest along West Caddo Creek to I.H. 30; thence southwest along I.H. 30 to F.M. 548 in Rockwall County; thence southeast along F.M. 548 to S.H. 205 in Kaufman County; thence southeast along S.H. 205 to US Hwy. 80.

                         (H)[(F)] Existing SZs may be modified and additional SZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

                 (2) (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