TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 65. WILDLIFE

SUBCHAPTER B. DISEASE DETECTION AND RESPONSE

In a duly noticed meeting on August 24, 2017, the Texas Parks and Wildlife Commission adopted new §65.83 and amendments to §65.86 and §65.91, concerning Disease Detection and Response. New §65.83 is adopted with changes to the proposed text as published in the July 21, 2017, issue of the Texas Register (42 TexReg 3619). The amendments to §65.86 and §65.91 are adopted without changes and will not be republished.

The change to §65.83 eliminates paragraph (2), which is superfluous. As proposed, paragraph (2) stipulated that TC 3 deer breeding facilities located with a Containment Zone (CZ) or Surveillance Zone (SZ) must be in compliance with §65.94, concerning Breeding Facility Minimum Movement Qualification and §65.95, concerning Movement of Breeder Deer, in order to release deer to immediately adjoining acreage, which was intended as a point of clarification. Because paragraph (4) requires all deer breeding facilities to be in compliance with all applicable provisions of Chapter 65, Subchapter B (which includes §65.94 and §65.95), paragraph (2) is unnecessary. Therefore, the change removes paragraph (2) and redesignates the remaining provisions accordingly.

The change to §65.93 also eliminates language in paragraph (3) (paragraph (4) as proposed) alluding to herd orders issued by the Texas Animal Health Commission (TAHC) signed by the permit holder. The department has determined that the language as proposed is unnecessary because a TAHC hold order is not valid unless it is signed.

New §65.83, concerning Special Provisions, allows for the release of breeder deer from a TC 3 facility within a Containment Zone (CZ) or Surveillance Zone (SZ) to adjoining acreage under the same ownership, provided the release is authorized under a herd plan issued by the Texas Animal Health Commission (TAHC), which may also specify testing requirements, and the facility is in compliance with all applicable provisions of the subchapter unless exempted by a herd plan. In a recent rulemaking, the department liberalized certain provisions of Subchapter B, Division 1 that relate to the movement of live deer to or from deer breeding facilities within a CZ. Those liberalizations allowed for the release of breeder deer in a SZ from a deer breeding facility located outside a SZ if authorized by Division 2 of this subchapter, but inadvertently resulted in a complete prohibition on the release of breeder deer from TC 3 facilities located within a CZ or SZ. The department intended to allow for release of breeder deer from a TC 3 breeding facility located within a CZ or SZ and designated under the provisions of Division 2 as movement qualified (MQ), provided that facility is operating under a herd plan that authorizes the release of deer to adjoining acreage under the same ownership and is in compliance with all applicable provisions of this subchapter unless exempted by a herd plan. The new section remedies that oversight.

The amendments to §65.86, concerning Preemption, and §65.91, concerning General Provisions, alter the provisions of those sections to achieve the intended harmonization of the provisions of Subchapter B, Division 1 with the provisions of Subchapter B, Division 2 and the remainder of Chapter 65. In 2013 the department adopted §§65.80-65.82 and 65.84-65.89 in response to the discovery of chronic wasting disease (CWD) in far west Texas. The rules created mechanisms to contain and limit the spread of CWD following discovery. At that time, §§65.80-65.82 and 65.84-65.89 constituted the entirety of Subchapter B; however, in 2016 the department adopted §§65.90-65.99 to address the discovery of CWD in deer breeding facilities, which necessitated the designation of §§65.80-65.82 and 65.84-65.89 as Division 1 and §§65.90-65.99 as Division 2. The provisions of §65.86 currently refer to the resolution of conflicts between Subchapter B and any other subchapter of Chapter 65, and should be altered to apply to conflicts between Division 1 and Division 2 of Subchapter B and conflicts between Division 1 of Subchapter B any other subchapter of Chapter 65. The amendment to §65.86 accomplishes that. The amendment to §65.91 similarly clarifies the relationships between Division 2, Division 1, and the remainder of Chapter 65.

The department has engaged in a number of rulemakings to address, contain, and manage chronic wasting disease following its discovery in Texas in both captive and free-ranging populations. 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). Moreover, a high prevalence of the disease in free-ranging populations correlates with deer population declines and human dimensions research indicates that hunters will avoid areas of high CWD prevalence. If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion dollar ranching, hunting, wildlife management, and real estate economies could be significant.

The department received two comments opposing adoption of the proposed rules. Both commenters provided a reason or rationale for opposing adoption.

One commenter opposed adoption and stated that deer breeding should not be permitted. The department disagrees with the comment and responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the department is required to issue a deer breeding permit to a qualified person. No changes were made as a result of the comment.

One commenter opposed adoption and stated opposition to rules concerning coastal fisheries, which isn't germane to this rulemaking. No changes were made as a result of the comment.

The department received eight comments supporting adoption of the proposed rules.

DIVISION 1. CHRONIC WASTING DISEASE (CWD)

31 TAC §65.83, §65.86

The amendment and new section are adopted 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; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); 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.

§65.83.Special Provisions.

A TC 3 breeding facility located in a CZ or SZ may release breeder deer to adjoining acreage under the same ownership, provided:

(1) the title in the county deed records reflects that the surface of the release site and of the breeding facility is held by the same owner or owners;

(2) the release is specifically authorized in a herd plan prepared for the facility by the Texas Animal Health Commission and TPWD; and

(3) the TC 3 breeding facility that releases breeder deer under the provisions of this section is in compliance with all applicable provisions of this subchapter, including provisions relating to the testing of released breeder deer, except as specifically exempted under a herd plan prepared and approved by the department and TAHC.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 24, 2017.

TRD-201703327

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Effective date: September 13, 2017

Proposal publication date: July 21, 2017

For further information, please call: (512) 389-4775


DIVISION 2. CHRONIC WASTING DISEASE - MOVEMENT OF DEER

31 TAC §65.91

The amendment is adopted 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; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); 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 agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 24, 2017.

TRD-201703328

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Effective date: September 13, 2017

Proposal publication date: July 21, 2017

For further information, please call: (512) 389-4775