TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 1. GENERAL PROCEDURES

SUBCHAPTER H. REQUESTS FOR PUBLIC INFORMATION

4 TAC §1.400

The Texas Department of Agriculture (Department) proposes the repeal of 4 Texas Administrative Code, Chapter 1, §1.400 and amendments to §1.402 and §1.404. The proposed repeal and proposed amendments are collectively referred to as the proposal.

The Department identified the need for the proposal during its rule review conducted pursuant to Texas Government Code §2001.039, the adoption for which can be found in the Review of Agency Rules section of this issue.

The proposed repeal of §1.400 is necessary because the definitions within the rule are either not used in Subchapter H or are unnecessary.

The proposed amendments to §1.402 clarify the rule and make editorial changes.

The proposed amendments to §1.404 correct typographical errors, make an editorial change and clarify when charges for public information requests can be made. The proposed amendments also change the heading of this section from "Prepayments and Waiver of Public Information Charges" to "Prepayment and Waiver of Public Information Charges".

LOCAL EMPLOYMENT IMPACT STATEMENT: The Department has determined that the proposal will not affect a local economy, so the Department is not required to prepare a local employment impact statement under Government Code §2001.022.

GOVERNMENT GROWTH IMPACT STATEMENT: Pursuant to Government Code §2001.0221, the Department provides the following Government Growth Impact Statement for the proposal. For each year of the first five years the proposal will be in effect, the Department has determined the following:

(1) the proposal will not create or eliminate a government program;

(2) implementation of the proposal will not require the creation of new employee positions or the elimination of existing employee positions;

(3) implementation of the proposal will not require an increase or decrease in future legislative appropriations;

(4) the proposal will not require an increase or decrease in fees paid to the Department;

(5) the proposal does not create a new regulation;

(6) the proposal will not expand, limit, or repeal an existing regulation;

(7) the proposal will not change the number of individuals subject to the rules; and

(8) the proposal will not affect the state's economy.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Susan Maldonado, Lead Deputy General Counsel, has determined that enforcing or administering the proposal does not have foreseeable implications relating to cost or revenues to state or local governments.

PUBLIC BENEFITS: Ms. Maldonado has determined that for each year of the first five-year period the proposal is in effect, the public benefit will be improved clarity and readability of rules related to public information requests.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL: Ms. Maldonado has determined that for each year of the first five-year period the proposal is in effect, there will be no costs to persons who are required to comply with the proposal.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES: The Department has determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposal, therefore preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code §2006.002 is not required.

Comments on the proposal may be submitted to Skyler Shafer, Assistant General Counsel, P.O. Box 12847, Austin, Texas 78711, or by email to skyler.shafer@texasagriculture.gov. The deadline for comments is 30 days after publication in the Texas Register.

The repeal is proposed under Texas Government Code, §552.230, which authorizes governmental bodies to adopt reasonable rules of procedure under which public information may be inspected and copied, and Texas Agriculture Code, §12.016, which provides that the Department may adopt rules as necessary for the administration of its powers and duties under the Texas Agriculture Code.

The statutory provisions affected by the repeal are contained in Texas Government Code, Chapter 552.

§1.400.Definitions.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102864

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 936-9360


SUBCHAPTER H. REQUESTS FOR PUBLIC INFORMATION

4 TAC §1.402, §1.404

The amendments are proposed under Texas Government Code, §552.230, which authorizes governmental bodies to adopt reasonable rules of procedure under which public information may be inspected and copied, and Texas Agriculture Code, §12.016, which provides that the Department may adopt rules as necessary for the administration of its powers and duties under the Texas Agriculture Code.

The statutory provisions affected by the amendments are contained in Texas Government Code, Chapter 552.

§1.402.Charges for Providing Copies of Public Information.

(a) The department will charge fees for copies of public information or access to public information in accordance with the Public Information Act, Texas Government Code, Chapter 552 and the cost rules promulgated by the Office of the Attorney General of Texas in Texas Administrative Code, Title 1, Part 3, Chapter 70 (relating to Cost of Copies of Public Information). [The charge to any person requesting access to public information or copies of public information from the department will be the charges established by the Public Information Act, and the rules of the Office of the Attorney General, to the extent that they do not conflict with the Act.]

(b) The cost rules promulgated [charge provisions established] by the Office of the Attorney General of Texas do not apply to requests for copies of publications compiled and printed by the department for public dissemination, and the department shall determine the charge to be made for such publications unless the charge is set by law.

(c) Requests for public information for which the Public Information Act, Texas Government Code, Chapter 552 or the Office of the Attorney General of Texas have not established a charge will be charged [at] the actual cost to the department to provide the item in accordance with Texas Administrative Code, Title 1, Part 3, Chapter 70, §70.10.

§1.404.Prepayment [Prepayments] and Waiver of Public Information Charges.

(a) The department requires prepayment of all charges prior to release of public information, unless the charges total $100 or less. The requestor [requester] will be contacted by a department representative once the cost of filling the request is determined. Each component of the total charge will be indicated on the department's billing form in order to provide full disclosure to the requestor [requester]. The prepayment requirement may be waived by the department in appropriate circumstances.

(b) The department will waive the charge for a [any] public information request that[, without the waiver,] would result in a total charge of $40.00 or less, except any remote document retrieval costs will be charged to the requestor.

(c) The department will furnish public information without charge or at a reduced charge if the department determines that a waiver or reduction in fees is in the public interest.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102866

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 936-9360


PART 2. TEXAS ANIMAL HEALTH COMMISSION

CHAPTER 33. FEES

4 TAC §§33.1 - 33.4

The Texas Animal Health Commission (commission) proposes amendments to Title 4, Texas Administrative Code, Chapter 33, titled "Fees". Specifically, amendments are proposed to §33.1, concerning Definitions, §33.2, concerning Certificate of Veterinary Inspection, §33.3, concerning Inspection of Foreign Cattle Fee and §33.4, concerning Enforcement and Penalties, is proposed for addition.

BACKGROUND AND SUMMARY OF PROPOSED AMENDMENTS

The proposed amendments update terms and recognize modern technologies for obtaining Certificates of Veterinary Inspection. Grammatical and editorial changes for improved readability are proposed throughout §§33.1, 33.2 and 33.3. The new section, "Enforcement and Penalties," is proposed as §33.4 to clarify applicable penalties for violations.

SECTION-BY-SECTION DISCUSSION

§33.1. Definitions

The proposed amendment to §33.1 deletes an unnecessary term, "livestock market," as the term is not otherwise used in Chapter 33.

§33.2. Certificate of Veterinary Inspection

In subsection (a), the statement nullifying and voiding certificates issued prior to 2005 is proposed for deletion because it is outdated and certificates prior to 2005 are unlikely. Subsection (a) also proposes the inclusion of exotic fowl to clarify a type of animal that may require a Certificate of Veterinary Inspection (CVI). That subsection also adds that CVIs approved by the commission are acceptable. Subsection (b) proposes editorial changes for clarification; paper CVIs are sold in books of ten certificates to show the distinction between paper and electronic CVIs. In subsection (c), the option to obtain electronic CVIs is proposed to reflect current available technology, and the website to purchase those CVIs is provided.

§33.3. Inspection of Foreign Cattle Fee

The proposed amendments to this section are non-substantive grammatical and editorial changes for clarity and improved readability.

§33.4. Enforcement and Penalties

For clarity, the proposed section describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Subsection (b) provides that administrative penalties may not exceed $5,000 each day a violation continues or occurs.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each year of the first five years the rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. Commission employees currently implement these rules as part of their regular job duties and resources. Ms. Sines also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules, and the proposed rules do not have foreseeable implications relating to costs or revenues of state governments.

PUBLIC BENEFIT NOTE

Ms. Myra Sines also determined that for each year of the first five years the rules are in effect, the anticipated public benefit will be the continuation of fee collection from Certificates of Veterinary Inspection to further commission services, activities, and programs protecting and promoting Texas animal agriculture. Additionally, the proposal improves readability of the rules and increases awareness of the electronic Certificate of Veterinary Inspection option as well as the third-party Certificates of Veterinary Inspection approved by the commission.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission determined that the proposed rules would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code §2001.0225 does not apply to the proposed rules because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure and, therefore, is not a major environmental rule.

TAKINGS ASSESSMENT

The commission determined that the proposed rules do not restrict, limit, or impose a burden on an owner's right to his or her private real property that would otherwise exist in the absence of government action. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a takings.

ECONOMIC IMPACT STATEMENT

The commission determined that the proposed rules would not impact a small business, microbusiness, or rural community pursuant to Texas Government Code, Chapter 2006.

REGULATORY FLEXIBILITY ANALYSIS

The proposed rules of this chapter do not have an adverse economic impact on small businesses, microbusinesses, or rural communities. As such, the commission did not consider alternative methods to achieve the purpose of this proposed rule pursuant to Texas Government Code §2006.002(c)(2).

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). For each year of the first five years the proposed rules would be in effect, the commission determined the following:

1. The proposed rules would not create or eliminate a government program;

2. Implementation of the proposed rules would not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed rules would not require an increase or decrease in fees paid to the commission;

5. The proposed rules would not create a new regulation;

6. The proposed rules would not expand existing rules and will not otherwise limit or repeal an existing regulation;

7. The proposed rules would not increase the number of individuals subject to the regulation; and

8. The proposed rules would not adversely affect this state's economy.

COST TO REGULATED PERSONS

The proposed rules do not impose a direct cost on a regulated person, a state agency, a special district, or a local government within the state. Instead, more regulatory options are provided. Therefore, it is unnecessary to amend or repeal any other existing rule.

REQUEST FOR COMMENT

Comments regarding the proposed rules may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax to (512) 719-0719, or by email to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The amendments to §§33.1, 33.2 and 33.3 and the addition of §33.4 of Title 4, Texas Administrative Code, are proposed under the following statutory authority as found in Chapter 161 of the Texas Agriculture Code.

The Texas Animal Health Commission is vested by statute, §161.041(a), titled "Disease Control", to protect all livestock, exotic livestock, domestic fowl, and exotic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl.

Pursuant to §161.046, titled "Rules", the commission may adopt rules as necessary for the administration and enforcement of this chapter.

Pursuant to §161.112, titled "Rules", the commission shall adopt rules relating to the movement of livestock, exotic livestock, and exotic fowl from livestock markets and shall require tests, immunization, and dipping of those livestock as necessary to protect against the spread of communicable diseases.

Pursuant to §161.060, titled "Authority to Set and Collect Fees", the commission by rule may charge a fee for an inspection made by the commission.

Pursuant to §161.0601, titled "Certificates of Veterinary Inspection", the commission by rule may provide for the issuance, including electronically, of a Certificate of Veterinary Inspection by a veterinarian to a person transporting livestock, exotic livestock, domestic fowl, or exotic fowl. The commission by rule shall set and charge a fee for each Certificate of Veterinary Inspection provided to a veterinarian.

Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.

No other statutes, articles, sections, or codes are affected by the proposed amendments.

§33.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Fee--A charge for a service [services], activity or a program provided by the Texas Animal Health (commission) [Commission. The Commission's mission is] to protect and promote the health of Texas animal agriculture. [Services to promote the Commission's mission are known as Commission services.] All fees due to the Commission must [shall] be mailed [sent] to the Texas Animal Health Commission [TAHC], P.O. Box 12966, Austin, Texas 78711-2966, or paid through other means as identified by the Commission[,] within 30 calendar days.

(2) Inspection--Ensuring all requirements [are met] related to testing, official animal identification, biosecurity [bio-security] standards, recordkeeping, and other applicable regulations for all animals are met.

[(3) Livestock market--A stockyard, sales pavilion, or sales ring where livestock, exotic livestock, or exotic fowl are assembled or concentrated at regular or irregular intervals for sale, trade, barter, or exchange and where the Commission has an inspector present.]

§33.2.Certificate of Veterinary Inspection.

(a) All veterinarians, licensed and accredited in Texas, that utilize a Certificate of Veterinary Inspection (CVI) for livestock, exotic livestock, [or] domestic fowl or exotic fowl shall use a current CVI issued or approved by the commission [Commission] on or after September 1, 2005. [All certificates printed and issued prior to September 1, 2005, will be null and void for issuance after October 31, 2005.]

(b) The commission will [Commission shall] assess a fee of $7.00 for each [individual] CVI. Paper CVIs [CVI's] will be sold in books of ten certificates per book for a total of $70.00.

(c) CVIs may be obtained electronically, by written request accompanied by a check or money order, or by phone paid for with an accepted credit card [The CVI may be obtained from the Commission through a written request, accompanied by a check or money order,] for the full amount to cover the requested number of CVIs. A [CVI's. The] written request shall be mailed [sent] to Texas Animal Health Commission, P.O. Box 12966, Austin, Texas 78711-2966. [When established, the Commission may also accept phone orders paid for by an accepted credit card.] Phone orders may be made by calling 1-800-550-8242. Electronic orders may be placed at: https://www.tahc.texas.gov/cvi/cvi.html.

(d) For a list of commission-approved CVIs, visit https://www.tahc.texas.gov/cvi/cvi.html.

§33.3.Inspection of Foreign Cattle Fee.

(a) All cattle originating from foreign countries may be inspected at the first point of destination or any mutually agreed upon location in Texas within 7 days of entry. The owner or caretaker must [will] submit a fee to the commission [Commission,] within 30 calendar days of arrival, in accordance with the schedule provided in subsection (b) of this section. An inspection may [can] include, but is not limited to, compliance with test requirements, verification of animal identification, and evaluation of biosecurity [bio-security] standards or other standards [as] prescribed by the commission [Commission].

(b) $1.00 for every animal.

§33.4.Enforcement and Penalties.

(a) A person who violates a rule or order under this chapter is subject to administrative penalties, criminal penalties, sanctions, and civil remedies as authorized by Chapter 161, Texas Agriculture Code.

(b) An administrative penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102877

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 719-0724


CHAPTER 40. CHRONIC WASTING DISEASE

4 TAC §§40.1 - 40.8

The Texas Animal Health Commission proposes amendments to Title 4, Texas Administrative Code, Chapter 40 titled "Chronic Wasting Disease", Specifically, amendments are proposed to §40.1, concerning Definitions, §40.2, concerning General Requirements, §40.3, concerning Herd Status Plans for Cervidae, §40.4, concerning Entry Requirements, §40.5, concerning Surveillance and Movement Requirements for Exotic CWD Susceptible Species, §40.6, concerning CWD Movement Restriction Zones and §40.7, concerning Executive Director Declaration of a CWD Movement Restriction Zone. The Texas Animal Health Commission proposes the addition of §40.8, concerning Enforcement and Penalties.

BACKGROUND AND SUMMARY OF PROPOSED AMENDMENTS

The purpose of this chapter is to prevent and control the incidence of chronic wasting disease (CWD) in Texas by seeking to reduce the risk of interstate and intrastate transmission of CWD in susceptible cervid species. The Texas Animal Health Commission (commission) proposes amendments to each section of Chapter 40 to clarify, correct, and update information regarding CWD management. Non-substantive grammatical and editorial changes are also proposed throughout the chapter for improved readability.

Chronic wasting disease is a degenerative and fatal neurological communicable disease recognized by the veterinary profession that affects susceptible cervid species. CWD can spread through natural movements of infected animals and transportation of live infected animals or carcass parts. Specifically, prions are shed from infected animals in saliva, urine, blood, soft-antler material, feces, or from animal decomposition, which ultimately contaminates the environment in which CWD susceptible species live. CWD has a long incubation period, so animals infected with CWD may not exhibit clinical signs of the disease for months or years after infection. The disease can be passed through contaminated environmental conditions, and may persist for a long period of time. Currently, no vaccine or treatment for CWD exists.

To mitigate the risks and spread of CWD, the commission works in coordination and collaboration with the Texas Parks and Wildlife Department (TPWD) to address CWD. The commission has jurisdiction over exotic CWD susceptible species. TPWD has jurisdiction over mule deer, white-tailed deer, and other native species. Those native species are classified as property of the state of Texas and managed as state resources. TPWD, under specific statutory authorization, allows herd owners to breed, trade, sell, and move white-tailed or mule deer that meet certain TPWD requirements.

The commission implements a herd management plan for cervid herds affected by CWD. The herd plan sets forth steps to control the spread of CWD from a CWD-positive herd, the risk of CWD in a CWD-exposed or CWD-suspect herd, or prevent the introduction of CWD into a herd. Herd plans include animal identification, regular examination for clinical signs of CWD, recordkeeping, and other requirements to best prevent or control CWD.

The commission also offers participation in the CWD Herd Certification Program. The Herd Certification Program is a voluntary, cooperative surveillance and certification program between the commission, United States Department of Agriculture (USDA), herd owners, and other affected parties. The purpose of the program is to promote a consistent, national approach in controlling CWD in farmed and captive cervids and preventing the interstate spread of CWD. Participating herds that meet program requirements and have no evidence of CWD advance in status each year for five years, then are certified as low risk for CWD. Certification status, in addition to compliance with the Herd Certification Program performance-based regulations and herd status, permits interstate animal movement.

In May 2019, the USDA updated the CWD Program Standards ("federal standards"). The standards were revised to clarify and update acceptable methods for complying with the legal requirements in 9 CFR Parts 55 and 81. As a participating Approved State CWD Herd Certification Program, the commission is proposing to update the Herd Certification Program rules to align with revised federal standards where applicable and federal regulations.

The proposed amendments for Containment Zone 6 and Surveillance Zones 3, 6 and 7 are in response to CWD discoveries in Lubbock, Hunt, and Uvalde counties. On March 1, 2021, CWD was confirmed and reported in a free-ranging 8.5-year-old mule deer in Lubbock County. The proposed amendment creates Containment Zone 6 and Surveillance Zone 6 in response to that confirmed case. On March 31, 2021, CWD was reported in white-tailed deer in breeding facilities in Hunt and Uvalde counties. The proposed extension to Surveillance Zone 3 is in response to the confirmed CWD cases in Uvalde County, and Surveillance Zone 7 is proposed in response to the confirmed CWD case in Hunt County. The purpose of the restriction zones is to both increase surveillance and reduce the risk of CWD being spread from areas where it may exist.

SECTION-BY-SECTION DISCUSSION

§40.1 Definitions

The proposed rules amend §40.1, "Definitions," by alphabetizing the defined terms, correcting grammar for clarity and conciseness, and adding and deleting terms. The alphabetization of terms causes the numeration changes. The proposed new terms are: "Breeding Facility", "CWD-Suspect Animal", "CWD-Suspect Herd", "Enrollment Date", "Enrolled Herd", "Executive Director", "Herd Certification Program", "Herd Plan", "Herd Status", "Hold Order", "Location Identification Number (LID)", "Minimum Mortality Rate", "Official CWD Test", "Premises Identification Number (PIN)", "Quarantine", "Release Facility", "Status Date" and "TAHC Authorized Veterinarian". The terms proposed for deletion are "CWD Profile", "Suspicious Animal" and "Suspicious Herd". "Certified CWD Postmortem Sample Collector", "Chronic Wasting Disease", "Commingled, Commingling", "CWD Susceptible Species", "Herd", "Limited Contact" and "Trace Herd" propose substantive amendments to better align with 9 CFR Parts 55 and 81 and the federal standards.

The commission proposes the additions of "Breeding Facility" and "Release Facility" to improve understanding about the types of facilities in Texas. "CWD-Suspect Animal" and "CWD-Suspect Herd" are proposed to replace "Suspicious Animal" and "Suspicious Herd." The terms are used in the same way, but the definitions are proposed to align with 9 CFR §55.1 and the federal standards. "Enrollment Date," "Enrolled Herd" and "Status Date" are proposed to align with the federal standards. "Executive Director," "Location Identification Number," and "TAHC Authorized Veterinarian" are proposed for clarification. "Herd Certification Program," "Herd Plan" and "Herd Status" are proposed to align with 9 CFR §55.1 and the federal standards. Additionally, parts of 9 CFR §55.24(a) are proposed for addition to the "Herd Status" definition to improve understanding. "Hold Order" and "Quarantine" are defined as the same term in the federal standards, but the commission proposes distinguishing the two types of actions for improved understanding of movement restrictions.

"Location Identification Number" is proposed as an alternative location-based numbering system to the Premises Identification Number. "Minimum Mortality Rate" is proposed to reflect the commission's decision to utilize death loss in animals 12 months and over from natural causes averaged over a three-year period to determine the minimum number of samples that must be submitted to meet Herd Certification Program requirements unless epidemiologically determined otherwise. The "Official CWD Test" definition is consistent with 9 CFR Part 55 and the federal standards. "Premises Identification Number" is proposed to better align with 9 CFR §55.1, 9 CFR §81.1 and the federal standards.

The following summaries explain substantive changes to existing definitions. In the "Certified CWD Postmortem Sample Collector" definition, "Postmortem" is added as an update to clarify current sampling procedures. The definition aligns with 4 TAC §47.21. Additionally, "laboratory submission" is proposed to more accurately describe the scope of training and align with the federal standards. "CWD Profile" is proposed for deletion because the term is not used elsewhere in Chapter 40 nor is it used in the federal rules or standards, so the commission proposes adding the clinical signs from the "CWD Profile" as well as those from 9 CFR §81.1 to the "Chronic Wasting Disease" definition. Those clinical signs compile a non-exhaustive list of potential CWD symptoms to improve understanding of symptoms that may indicate the presence of the disease.

In the "Commingled, Commingling" definition, "of any age" is proposed to improve understanding regarding the scope of commingling that no commingling may occur between CWD susceptible species of any age. The proposed addition aligns with 9 CFR §55.1, which does not specify an age, and clarifies that animals 12 months or younger are subject to the same requirements as separate herds enrolled in the Herd Certification Program. In the same definition, the disease status aspect of potential commingling is added to clarify the scope of commingling and follow the federal standards and 9 CFR §55.1 definition of commingling.

In the proposed changes to "CWD Susceptible Species", reindeer and caribou are proposed as the commission independently evaluated evidence supporting the species' susceptibility to CWD and found sufficient evidence to support the inclusion in the definition. In the "Farmed or Captive" definition, "cervids" is proposed to clarify the animal at issue. The word "temporarily" is proposed for deletion because free-ranging animals could not be temporarily captured before movement, and the deletion conforms to 9 CFR §55.1 and the federal standards. In the same definition, "or intrastate" is proposed to clarify that certain cervids, like white-tailed deer, may move within the state to more accurately describe the scope of cervid movement.

In the definition of "Herd", the requirements for separate herds is proposed for deletion because those exist in §40.3(a)(5). In "Limited Contact", the terms "incidental" and "between cervids of different herds" are proposed to align with the federal standards and clarify the type of contact at issue. In the definition of "Trace Herd", "CWD-positive" is proposed to replace "affected" for improved clarity and to align with 9 CFR §55.1.

§40.2 General Requirements

The proposed rules amend §40.2, "General Requirements", by proposing "CWD-positive", "CWD-suspect", "commission", "Executive Director" and "approved laboratory" for consistency with §40.1. In subsections (a)(1) and (a)(4), "epidemiologic" is proposed to clarify the kind of investigation conducted upon a hold order or quarantine. In subsection (b), the proposed title amends "Procedures in" to "Requirements for" to better describe the scope of the subsection. Subsection (b) also proposes the flexibility to add herd plan requirements, including duration, that differ from the listed requirements if an epidemiological assessment supports revised action to better protect a herd against the risk and spread of CWD. Further, the word "euthanized" is proposed to replace "destroyed" to more accurately represent the disposal process and use consistent terms with the existing rule.

In subsection (b), the commission proposes clarification that the hold order and quarantine period of 5 years is from the "last exposure to a CWD-positive animal or a CWD-exposed animal" rather than the "last case of CWD" to clarify the beginning of the timeframe and align with the federal standards. The existing subsection (b)(3) is proposed for deletion because the disposition of a positive herd is not dependent on whether evidence of transmission exists. As such, subsection (b)(3) did not add substantive content to the section, and subsection (b)(3)(E) is proposed in subsection (b)(2)(E) to ensure no substantive content is deleted.

In subsection (c), "disposal" is proposed to replace "destruction" to more accurately describe the process. The word "positive" is proposed to clarify the presumptive diagnosis that would trigger the application of this subsection. The addition of "a CWD diagnosis" is proposed to clarify what is disclosed on a premises with regard to animal disposal procedures. Finally, the addition of "indemnity" in subsection (d) is proposed to clarify the type of federal payment pursuant to 9 CFR §55.2.

§40.3 Herd Certification Program for Cervidae

The proposed title is amended from "Herd Status Plans for Cervidae" to "Herd Certification Program for Cervidae" to better describe and clarify the content of the section. In subsection (a)(1), the requirement to identify each animal in the Herd Certification Program before March 31 of the year following the animal's birth is proposed to be consistent with TPWD's requirement, promote compliance, and reduce confusion.

Subsection (a)(2) proposes the minimum perimeter fence height to 8 feet to align with the federal standards. The amendment would grandfather in existing fences, and require the height after October 15, 2021. Subsection (a)(3) proposes amending the reporting requirement to 72 hours instead of five business days to be consistent with the federal standards. Additionally, "farmed to captive cervids" and "TAHC Authorized Veterinarian" terms are proposed for clarification. The commission proposes the addition that herd owners record as part of the complete inventory births, deaths, acquisitions, and dispositions as well as test result records for those animals that died to follow the federal standards' herd inventory requirement. In subsection (a)(5)(D), the reference to the federal standards' appendix is proposed for deletion as the reference is now outdated.

In subsection (b), terms are amended to match the terms as defined in §40.1. The commission proposes submitting samples within 7 days of collection to align with the federal standards. In the same section, the commission proposes the test samples meet the minimum mortality rate as defined in §40.1. Subsection (c) clarifies herd status changes and effects, including when a herd would be placed in Suspended Status as a result of CWD, pursuant to 9 CFR §55.24. Subsection (d) updates where an animal identification number may be linked pursuant to 9 CFR §55.23, and subsection (e) clarifies that the five-year record retention requirement begins after the animal has left the herd or died. In subsection (e)(9), age is added for clarification and to align with 9 CFR §55.23 and the federal standards.

Subsection (f) is proposed to more closely align with 9 CFR §55.23 and the federal standards. The proposed subsection better describes the three types of inspections required to clarify requirements for enrolled herds. Additionally, the commission proposes the initial inspection occur not more than 60 days prior to the herd's date of enrollment rather than 12 months to align with current commission practice to enroll herds as quickly as possible. The commission also proposes visual verification on at least 50% of the animals at the annual inspection to align with commission standard practice. In subsection (f)(4), the commission proposes the herd owner notify the respective TAHC Region Office at least 72 hours prior to any inspection performed by a TAHC Authorized Veterinarian to provide sufficient notice and allow a commission representative to observe the inspection. Subsection (g) removes the cross-reference to another commission rule and instead proposes that content for convenience. In subsection (h), "revocation" is proposed to replace "cancellation" to more accurately explain the action.

Subsection (i) is proposed to provide herd owners with information about how to voluntarily cancel program participation. The provision follows the federal standards. Subsection (j) is also proposed to follow the federal standards and provide greater clarity regarding what to do upon a herd relocating either intrastate or interstate. Subsection (k) is proposed to clarify the commission's authority to alter herd status if a herd owner does not comply with Chapter 40 of the Texas Administrative Code.

§40.4 Entry Requirements

Subsection (a) proposes the clarification and correction to the cross-reference to live animal entry requirements in Chapter 51. The existing subsection (b)(1) is proposed to become part of subsection (b) for improved readability. Because the existing subsection (b)(2) was an exception to subsection (b)(1), a new subsection is proposed for clarity. In the proposed subsections (c) and (d), the term "CWD susceptible species" is proposed for consistency with the defined term.

§40.5 Surveillance and Movement Requirements for Exotic CWD Susceptible Species

Terms from §40.1 are proposed throughout this section for consistency. In the "Eligible Mortality" definition in subsection (a)(1), the "and/or" is proposed to become "or" since the premises could raise or contain exotic CWD susceptible species; the "or" would cover either activity. In the same definition, "or" is proposed to replace "and" because that list regarding causes of death is inclusive. Reindeer and caribou are proposed for addition to the exotic CWD susceptible species definition to reflect the commission's determination based on available evidence that the species is susceptible to CWD.

In subsection (c)(2), the description of a PIN is proposed for deletion because that content is included in the proposed definition of "Premises Identification Number (PIN)." In the same subsection, "LID" is added as an identification option, and the addition of "from the commission or USDA" clarifies where a herd owner may obtain a PIN or LID. In subsection (c)(3), "mortality records" is proposed to replace "mortality log" as mortality log is not used elsewhere in the chapter and "mortality records" is consistent with subsection (f)(3). Subsection (c) also proposes the addition of annually reconciling records and requiring that annual inventory records be kept for one year following submission to the commission.

In subsections (f)(2) and (h), "representative" is proposed to replace "employee" and "personnel" to clarify who may request mortality or dealer records. In subsection (h)(4), the term "sex" is proposed to replace "gender" of the animal for accuracy of terminology.

§40.6 CWD Movement Restriction Zones

Throughout the section, the word "exotic" is proposed to replace "non-native" throughout the chapter for consistency with the commission's governing statutes. In subsection (a), the proposed amendment to the "CWD Containment Zone (CZ)" definition defines the zone more concisely. The proposed addition of "using the best available science" in both that definition and "CWD Surveillance Zone" better reflects current commission practice. In the same subsection, reindeer and caribou are proposed for addition to the exotic CWD susceptible species definition based on the commission's determination that the species is susceptible to CWD. Additionally, the "final processing" and "processing facility" definitions are proposed for clarification. The "high fence premises" definition proposes a fence must be adequate to prevent both ingress and egress, not one or the other. The word "native" in subsection (a)(5) is proposed to move from "CWD Native Susceptible Species" to "Native CWD Susceptible Species" to match the structure of the term "Exotic CWD Susceptible Species." In the same definition, the word "other" is proposed to clarify that mule deer and white-tailed deer are also native cervids. "TPWD" is proposed to replace "Department" for consistency with the abbreviated term as defined. As such, the proposed alphabetization changes the numeration of this subsection.

In subsection (b), the clarifying "such as containment zones and surveillance zones" phrase is proposed to introduce the types of areas restricted for CWD that immediately follow. One new containment zone in subsection (b)(1)(E) and three new surveillance zones in subsections (b)(2)(C), (b)(2)(F) and (b)(2)(G) are proposed in response to recent CWD confirmations. The proposed containment zone covers Lubbock, Lynn, Crosby, and Garza counties. The proposed containment zone number is 6 to correspond to the proposed Surveillance Zone 6. Because the proposed zone covering Uvalde County expands the existing Surveillance Zone 3, the commission proposes amending that zone to include that expansion. Surveillance Zone 7 covers Hunt, Kaufman, Rockwall, and Van Zandt counties. Each proposed zone aligns with zones developed in consultation with Texas Parks and Wildlife Department.

In subsection (c), "Herd Certification Program for Cervidae", is proposed to align with the proposed §40.3 title. The cross-reference to carcass movement restrictions in subsection (c)(4) corrects subsection (g) to subsection (e); subsection (g) pertains to restriction zone review, not the carcass movement as referenced. In subsections (c-f), the terms "CWD susceptible species," "TPWD," "official animal identification," and "exotic CWD susceptible species" are proposed to align with the terms as defined in §40.1 and subsection (a) of this section. In subsection (d)(7), the "and" is proposed for deletion because either type of identification meets surveillance zone requirements.

In subsection (e)(2), "a processing facility for final processing, or another location as permitted by the commission on a VS Form 1-27" is proposed to allow more flexibility in where the harvested animal may be transported. A new subsection, (e)(3), is proposed to reorganize and distinguish the requirements of transportation from taxidermy for clarity; no content is changed. As such, that taxidermy content in the existing subsection (e)(2) is proposed for deletion. In subsection (f), "and" is proposed for deletion from the "and/or" phrase because the Executive Director may authorize movement for either reason. In subsection (g), "representative" is proposed to replace "staff" for consistency with other phrasing regarding persons eligible to review and recommend movement restriction zones.

§40.7 Executive Director Declaration of a CWD Movement Restriction Zone

In subsection (a), the deletion of the "hold order" definition is proposed since that term is proposed in §40.1. "CWD-positive" and "Executive Director" are proposed to align with defined terms. In subsection (c)(6)(B), "commission representative" is proposed to replace "personnel" for consistency with phrasing throughout this chapter regarding persons eligible to issue these documents. The proposed change to the Order's elements matches the structure of the introduction. In subsection (c)(7)(D), "quarantine" is proposed to replace "equine" to correct an error and reflect the language of Section 161.063(d) in Title 4 of the Texas Agriculture Code.

§40.8 Enforcement and Penalties

The proposed section describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Administrative penalties may not exceed $5,000 each day a violation continues or occurs.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each year of the first five years the rules are in effect, there are no estimated additional costs or reductions in costs to state or local governments as a result of enforcing or administering the proposed rules. Commission employees will administer and enforce these rules as part of their regular job duties and resources. Ms. Sines also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules, and the proposed rules do not have foreseeable implications relating to costs or revenues of state governments.

PUBLIC BENEFIT

Ms. Sines determined that for each year of the first five years the proposed rules are in effect, the anticipated public benefits will be consistency with the Code of Federal Regulations and recently updated federal CWD Herd Certification Program Standards, and the improved readability of commission rules to provide herd owners with clearer information to best mitigate the risk and spread of CWD in Texas. Further, the anticipated public benefit from the proposed rules is the protection of CWD susceptible species by increasing the probability of detecting CWD in areas of the state where it is confirmed or likely to be detected and by reducing the inadvertent movement of the disease from those areas.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission determined that the proposed rules will not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code §2001.0225 does not apply to the proposed rules because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure, and therefore, is not a major environmental rule.

TAKINGS ASSESSMENT

The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. Instead, the proposed rules relate to the handling of animals, including requirements concerning testing, movement, inspection, identification, reporting of disease, and treatment pursuant to 4 TAC §59.7. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a takings.

ECONOMIC IMPACT STATEMENT

The commission determined that the proposed amendments to §§40.1, 40.3, 40.6 may impact animal agricultural industries, which meet the definition of a small business or microbusiness pursuant to Texas Government Code, Chapter 2006, and may affect rural communities. Specifically, the commission determined that the proposed rules may affect breeding and nursing facilities, participants in the state's voluntary CWD Herd Certification Program, and herd owners of exotic CWD susceptible species located in the proposed containment and surveillance zones.

The commission determined that because of the proposed amendment to the "Commingled, Commingling" definition, there may be a cost to nursing facilities that commingle cervids 12 months of age and younger. As of July 19, 2021, there are 996 breeding facilities and 327 nursing facilities in Texas. The commission is aware of nursing facilities that commingle cervids, however, the agency cannot determine the exact number of businesses that may be affected by the proposed amendment.

The commission also determined that the proposed increase in fence height after October 15, 2021, addition of reindeer and caribou as a CWD susceptible species, inspection requirements, recordkeeping and reporting requirements, sample submission within 7 days of collection, and the minimum mortality rate may impact herd owners participating in the CWD Herd Certification Program. The purpose of the proposed rules pertaining to the Herd Certification Program is to bring Texas into compliance with 9 CFR Parts 55 and 81 and the revised federal standards governing the state-federal cooperative CWD Herd Certification Program. The proposed rules may help prevent adverse economic impacts associated with Texas not meeting minimum participation requirements of the Approved State CWD Herd Certification Program, which is required for the movement of CWD susceptible species in interstate commerce. The proposal may also reduce costs associated with the impacts of chronic wasting disease by promoting early detection of the disease and providing adequate surveillance. At the time of publication, 320 herds are voluntarily enrolled in the program.

The commission determined that the proposed surveillance and containment zones in response to recent positive CWD cases would not affect herd owners of exotic CWD susceptible species because the proposal applies to exotic CWD susceptible species located in geographic areas where CWD has been detected or there is a high probability of detection. As such, the movement and testing requirements resulting from the proposed zones are intended to reduce exposure to other susceptible species in the same rural community, where the disease risk is greatest, and other communities and small businesses across the state. As a result, the application of the rule will help prevent adverse economic impacts associated with chronic wasting disease.

Although the commission does not predict adverse economic impacts to those directly regulated by the commission, the commission considered the businesses that may be impacted and regulatory alternatives as part of its rule proposal process. Texas has an unknown number of exotic cervid species that are free-ranging and also maintained on high-fenced premises. Many of those premises are hunting ranches, which are not subject to the seasonal and regulatory hunting restrictions of TPWD for exotic CWD susceptible species. The commission is not aware of premises containing exotic CWD susceptible species in proposed Containment Zone 6 or Surveillance Zones 6 and 7. The commission is aware of premises in the proposed expansion of Surveillance Zone 3, however, the agency cannot determine the exact number of businesses that may be affected by the expanded zone. The premises known to be in proposed Surveillance Zone 3 are confirmed CWD positive facilities with testing and movement requirements equal to or more stringent than the zone testing and movement requirements proposed by these rules.

REGULATORY FLEXIBILITY ANALYSIS

The commission considered several alternative methods for achieving the proposed rules' purpose while minimizing adverse economic impacts on small businesses, microbusinesses, and rural communities, as applicable, pursuant to Texas Government Code, Chapter 2006. The following sections analyze the substantive proposed changes that may have direct, adverse economic impacts on regulated parties in the order they are presented in Chapter 40.

Commingling Definition. The addition of "of any age" to the commingling definition is proposed to clarify confusion regarding facilities participating in the Herd Certification Program holding CWD susceptible species 12 months of age or younger. The proposal would affect the 327 nursing facilities, some of which commingle cervids 12 months of age and younger. The commission considered separating all herds, making no change, and separating herds by 30 feet. The commission chose to address facilities holding CWD susceptible species 12 months of age or younger by clarifying that all herds must be separated by 30 feet to align with the commission's existing commingling definition and the federal standards that all herds enrolled in the Herd Certification Program must not be commingled. This allows the continued operation of fawns at nursing facilities which provide nourishment until the fawns are weaned while also minimizing the disease risk of commingling.

Minimum Mortality Rate. With regard to the voluntary Herd Certification Program, the commission considered the federal standards' application of a 20% removal rate, which measures the annual removal rate for all adult white-tailed deer, 12 months and older, removed or lost from inventory for any reason since the previous annual inventory. The commission instead proposes implementing the 5% minimum mortality rate based on Texas' data from 2005 to 2019 calculating the expected three-year period of death loss in white-tailed deer 12 months or older from natural causes. In that minimum mortality rate, the commission considers mortality from natural causes within pens rather than the federal removal rate's consideration of deer released to release sites or taken to slaughter. The commission's data supporting the 5% minimum mortality rate shows the mortality percent ranged from 3.77% to 8.07%, and averaged 5.63%. The commission was unable to determine how many facilities meet the minimum mortality rate as it is a new measurement, but determined no new cost would affect herd owners since they already incur the cost of CWD testing. As such, the commission proposes this less restrictive minimum mortality rate of 5% for herd owners to meet as well as the flexibility for the commission to epidemiologically determine the rate otherwise.

Reindeer and Caribou. The commission proposes the addition of reindeer and caribou as a CWD susceptible species based on a note in the federal standards expressing the USDA's plan to add the species to the definition in the next CFR review. The commission independently evaluated the best available science supporting the species' susceptibility to CWD, and found sufficient evidence based on peer-reviewed research in support of the proposal. With the addition of the reindeer and caribou as a CWD susceptible species, that species would be required to participate in a Herd Certification Program to enter Texas. To the commission's knowledge, few, if any, reindeer or caribou are currently present in Texas due to the climate. In the last three years, the commission issued 21 permits for reindeer to enter Texas for sale or exhibition.

Perimeter Fence Height Requirement. The commission proposes increasing the perimeter fence height to 8 feet for new herds enrolled in the voluntary Herd Certification Program after October 15, 2021. The commission considered three options to meet the minimum perimeter fence height requirement set forth in the revised federal standards: requiring all currently enrolled herd owners in the Herd Certification Program to comply with the new required perimeter fence height on the publication date of the federal standards, compliance on the date of herd enrollment after publication of the federal standards, or compliance on the date these rules become effective.

To minimize adverse economic impacts on small businesses, the commission chose to grandfather in current perimeter fence requirements and, if adopted, will implement the new height requirement for new herds after October 15, 2021. The commission determined the approximate price to install an 8-foot perimeter fence is between $4 and $5 per foot. The commission found 7-foot perimeter fencing, an alternative, was 5-10% less expensive than the 8-foot fencing. Variables affecting the price estimate includes location of fence, owner and builder preferences, and site preparatory work. The commission lacks the data for how many facilities have existing perimeter fences at or above 8 feet, but found that 8-foot fences adequately prevent ingress and egress of cervids, and the requirement aligns with federal standards. The proposal is distinguishable from Section 43.361 of the Texas Parks and Wildlife Code and Title 31, Subchapter T, Section 65.605 of the Texas Administrative Code because although those sections require perimeter fence of certain facilities to be not less than 7 feet in height, this proposal addresses the fence height of a facility voluntarily participating in the CWD Herd Certification Program and aligns with federal standards.

Reporting. With regard to the voluntary Herd Certification Program, the proposed modification to report farmed or captive cervids that escape or disappear and free-ranging cervids that enter the facility to the commission within 72 hours rather than 5 business days is consistent with the federal standards. Federal requirements call for the herd owner to report such information immediately, but the standards allow states to offer a 72-hour range to provide the herd owner time to recapture the animal and work with the commission for animal disposition decisions. As such, the commission considered the herd owner reporting immediately or reporting within 72 hours to still align with the federal standards, and proposes the less stringent 72-hour period to achieve the objectives of the rule while minimizing any adverse economic impacts associated with reporting more quickly.

Sample Submission. The commission proposes the requirement that herd owners shall submit CWD test samples within 7 days of collection in accordance with the federal standards. The commission considered requiring immediate submission, submission within 7 days, submission within 14 days, and not changing the existing provision. Based on the federal standards, the commission determined that sample submission within 7 days is the most appropriate proposal to allow some flexibility for herd owners while also protecting susceptible species from CWD by allowing the commission to act more quickly in response to any positive samples.

Herd Certification Program Inspections. The proposed requirement for participating herd owners to record all births, deaths, acquisitions, dispositions, escaped and disappeared animals to best protect Texas herds against the risks and spread of CWD. The estimated economic impact may be the cost of recording materials and the time to record this information. With regard to the voluntary Herd Certification Program, the proposed addition of inspection activities conforms to the federal standards and current commission practice. As such, no alternatives were considered.

Recordkeeping. The proposed rules add the requirement for a herd owner of an exotic CWD susceptible species to retain records for one year following submission to the commission. The commission requires records to be kept for five years in other parts of the chapter, which is the alternative to this provision. This proposal is less stringent on the herd owner while following the objective of the rule.

Containment and Surveillance Zones. The commission considered alternatives for all proposed zones, especially where there are known exotic CWD susceptible species, including voluntary surveillance and alternative zone boundaries that followed more recognizable features. With the upcoming hunting season and the potential for increased animal movement from the affected zones, the commission determined that voluntary testing would not protect the health of other CWD susceptible species in the affected area and across the state. The commission also determined that the regulated community would benefit from consistent zone boundaries for both native and exotic CWD susceptible species. As such, the commission proposes zone boundaries to align with boundaries developed in consultation with Texas Parks and Wildlife Department.

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). For each year of the first five years the proposed rules would be in effect, the commission determined the following:

1. The proposed rules will not create or eliminate a government program;

2. Implementation of the proposed rules will not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules will not require an increase or decrease in future legislative appropriations to the Commission;

4. The proposed rules will not require an increase or decrease in fees paid to the Commission;

5. The proposed rules will not create a new regulation;

6. The proposed rules will expand existing rules, but will not otherwise limit or repeal an existing regulation;

7. The proposed rules may increase the number of individuals subject to the regulation; and

8. The proposed rules will not adversely affect this state's economy.

COST TO REGULATED PERSONS

The proposed amendments to §§40.1, 40.3, and 40.6 may impose a cost on a regulated person if they operate a nursing facility that currently commingles CWD susceptible species, voluntarily participate in the CWD Herd Certification Program, or are owners of exotic CWD susceptible species located within a proposed surveillance or containment zone. The commission determined these proposals are necessary to follow the legislative requirement that the commission protect exotic livestock from certain diseases. The commission also determined the proposed amendments are necessary to meet a federal requirement or to receive federal funding. The proposed rules do not otherwise impose a direct cost on a regulated person, state agency, a special district, or a local government within the state. Pursuant to Section 2001.0045 of the Texas Government Code, therefore, it is unnecessary to amend or repeal any other existing rule.

REQUEST FOR COMMENT

Comments regarding the proposed amendments may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax at (512) 719-0719 or by e-mail to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The amendments to §§40.1 - 40.7 within Chapter 40 of the Texas Administrative Code and the addition of §40.8 are proposed under the following statutory authority as found in Chapter 161 of the Texas Agriculture Code.

The Texas Animal Health Commission is vested by statute, §161.041(a), titled "Disease Control", to protect all livestock, exotic livestock, domestic fowl, and exotic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl.

Pursuant to §161.0415, titled "Disposal of Diseased or Exposed Livestock or Fowl", the commission may require by order the slaughter of livestock, domestic fowl, or exotic fowl exposed to or infected with certain diseases.

Pursuant to §161.0417, titled "Authorized Personnel for Disease Control", the commission must authorize a person, including a veterinarian, to engage in an activity that is part of a state or federal disease control or eradication program for animals.

Pursuant to §161.046, titled "Rules", the commission may adopt rules as necessary for the administration and enforcement of this chapter.

Pursuant to §161.048, titled "Inspection of Shipment of Animals or Animal Product", the commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. An agent of the commission is entitled to stop and inspect a shipment of animals or animal products being transported in this state to determine if the shipment originated from a quarantined area or herd; or determine if the shipment presents a danger to the public health or livestock industry through insect infestation or through a communicable or non-communicable disease.

Pursuant to §161.049, titled "Dealer Records", the commission may require a livestock, exotic livestock, domestic fowl, or exotic fowl dealer to maintain records of all livestock, exotic livestock, domestic fowl, or exotic fowl bought and sold by the dealer. The commission may also inspect and copy the records of a livestock, exotic livestock, domestic fowl, or exotic fowl dealer that relate to the buying and selling of those animals. The commission by rule shall adopt the form and content of the records maintained by a dealer.

Pursuant to §161.054, titled "Regulation of Movement of Animals; Exception", the commission, by rule, may regulate the movement of animals. The commission may restrict the intrastate movement of animals even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. The commission is authorized, through §161.054(b), to prohibit or regulate the movement of animals into a quarantined herd, premises, or area. The Executive Director of the commission is authorized, through §161.054(d), to modify a restriction on animal movement, and may consider economic hardship.

Pursuant to §161.0541, titled "Elk Disease Surveillance Program", the commission by rule may establish a disease surveillance program for elk. Such rules include the requirement for persons moving elk in interstate commerce to test the elk for chronic wasting disease. Additionally, provisions must include testing, identification, transportation, and inspection under the disease surveillance program.

Pursuant to §161.0545, titled "Movement of Animal Products", the commission may adopt rules that require the certification of persons who transport or dispose of inedible animal products, including carcasses, body parts, and waste material. The commission by rule may provide terms and conditions for the issuance, renewal, and revocation of a certification under this section.

Pursuant to §161.056(a), titled "Animal Identification Program", the commission, to provide for disease control and enhance the ability to trace disease-infected animals or animals that have been exposed to disease, may develop and implement an animal identification program that is no more stringent than a federal animal disease traceability or other federal animal identification program. Section 161.056(d) authorizes the commission to adopt rules to provide for an animal identification program more stringent than a federal program only for control of a specific animal disease or for animal emergency management.

Pursuant to §161.060, titled "Authority to Set and Collect Fees", the commission may charge a fee for an inspection made by the commission as provided by commission rule.

Pursuant to §161.061, titled "Establishment", if the commission determines that a disease listed in §161.041 of this code or an agent of transmission of one of those diseases exists in a place in this state or among livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl, or a place in this state or livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl are exposed to one of those diseases or any agent of transmission of one of those diseases, the commission shall establish a quarantine on the affected animals or on the affected place. The quarantine of an affected place may extend to any affected area, including a county, district, pasture, lot, ranch, farm, field, range, thoroughfare, building, stable, or stockyard pen. The commission may, through §161.061(c), establish a quarantine to prohibit or regulate the movement of any article or animal the commission designates to be a carrier of a disease listed in Section 161.041 or a potential carrier of one of those diseases, if movement is not otherwise regulated or prohibited for an animal into an affected area, including a county district, pasture, lot, ranch, field, range, thoroughfare, building, stable, or stockyard pen.

Pursuant to §161.0615, titled "Statewide or Widespread Quarantine", the commission may quarantine livestock, exotic livestock, domestic fowl, or exotic fowl in all or any part of this state as a means of immediately restricting the movement of animals potentially infected with disease and shall clearly describe the territory included in a quarantine area.

Pursuant to §161.065, titled "Movement from Quarantined Area; Movement of Quarantined Animals", the commission may provide a written certificate or written permit authorizing the movement of animals from quarantined places. If the commission finds animals have been moved in violation of an established quarantine or in violation of any other livestock sanitary law, the commission shall quarantine the animals until they have been properly treated, vaccinated, tested, dipped, or disposed of in accordance with the rules of the commission.

Pursuant to §161.081, titled "Importation of Animals", the commission may regulate the movement of livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl into this state from another state, territory, or country. The commission by rule may provide the method for inspecting and testing animals before and after entry into this state, and for the issuance and form of health certificates and entry permits.

Pursuant to §161.101, titled "Duty to Report", a veterinarian, a veterinary diagnostic laboratory, or a person having care, custody, or control of an animal shall report the existence of the disease, if required by the commission, among livestock, exotic livestock, bison, domestic fowl, or exotic fowl to the commission within 24 hours after diagnosis of the disease.

Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.

The proposed rules in this chapter for adoption do not affect other statutes, sections or codes.

§40.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Approved Laboratory--A diagnostic laboratory approved by the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) [APHIS] Administrator to conduct official tests for CWD in accordance with 9 CFR §55.8.

(2) Breeding Facility--Privately owned, high-fenced pens where a cervid herd is managed for breeding purposes. The breeding facility must be registered with and assigned a facility identification number (FID) by the Texas Parks and Wildlife Department for white-tailed deer and mule deer.

(3) [(2)] Certified CWD Postmortem Sample Collector--An individual who has completed appropriate training recognized by the commission [his or her State] on the collection, preservation, laboratory submission, and [preservation of samples for CWD testing and on] proper recordkeeping of samples for postmortem CWD testing, and who has been certified by the commission to perform these activities [by the Commission].

(4) [(3)] Chronic Wasting Disease (CWD)--A transmissible spongiform encephalopathy (TSE) of susceptible species. Clinical signs include, but are not limited to, loss of body condition, loss of appetite, incoordination, blank stares, tremors, listlessness, excessive salivation, difficulty swallowing, increased drinking and urination, depression, and other behavioral changes and eventual death.

(5) [(4)] Commingled, Commingling [Commingled/Commingling]--Farmed cervids of any age are commingled if they are housed or penned together having direct physical contact with each other, have less than 10 feet of physical separation except in cases of limited contact, [(except in cases of "limited contact"; see definition)] or any activity where uninhibited contact occurs such as sharing an enclosure, a section of a transport vehicle, or sharing equipment, pens or stalls, pasture, or water sources/watershed, such as cervids housed in a pen that receives runoff or shares a natural or man-made body of water with another pen [(i.e., housed in a pen that receives runoff or shares a natural or man-made body of water with another pen)]. Commingling includes contact with bodily fluids or excrement from other farmed or captive animals. Animals are also considered to have commingled if they have had such contact with a CWD-positive herd or contaminated premises within the last 5 years. Farmed cervids commingled with other farmed cervids assume the status of the lowest program status animal in the group.

(6) [(5)] Commission--The Texas Animal Health Commission (TAHC).

(7) Complete Herd Inventory--One in which all animals in the herd must be validated by the person officially performing the inventory verification. [ CWD Profile--A cervid 12 months of age or older that is emaciated and exhibits some combination of clinical signs including abnormal behavior, increased salivation, tremors, stumbling, incoordination, difficulty in swallowing, excessive thirst, and excessive urination.]

(8) [(6)] CWD-Exposed [CWD Exposed] Animal--A CWD susceptible species [An animal] that is part of a CWD-positive herd, or that has been commingled with or been exposed to a CWD-positive animal or resided on contaminated premises within the five years before diagnosis.

(9) CWD-Positive Herd--A herd in which a CWD-positive animal resided at the time of CWD diagnosis.

(10) [(8)] CWD Susceptible Species--All species in the Cervidae [cervidae] family [determined to be susceptible to CWD, which means any species] that have [has] had a [diagnosis of] CWD diagnosis confirmed by [means of] an official test conducted by an approved laboratory [a laboratory approved by USDA/APHIS]. This includes white-tailed deer (Odocoileus virginianus), mule deer (Odocoileus hemionus), black-tailed deer (Odocoileus hemionus columbianus), North American elk or wapiti (Cervus canadensis [Canadensis]), red deer (Cervus elaphus), Sika deer (Cervus nippon [Nippon]), moose (Alces alces), reindeer and caribou (Rangifer tarandus) and any associated subspecies and hybrids.

(11) CWD-Suspect Animal--A CWD susceptible species with unofficial CWD test results, laboratory evidence or clinical signs that suggest a diagnosis of CWD, as determined by a commission representative, but for which official laboratory results are inconclusive or not yet conducted.

(12) CWD-Suspect Herd--A herd with unofficial CWD test results, laboratory evidence, or clinical signs that suggest a diagnosis of CWD, as determined by a commission representative, but for which official laboratory results are inconclusive or not yet conducted.

(13) [(9)] CWD Test Eligible--Unless otherwise specifically provided in these rules, all Cervidae [cervidae] 12 months of age and over.

(14) Enrollment Date--The day, month, and year when a herd that joins the CWD Herd Certification Program receives a satisfactory initial inspection. [Complete Herd Inventory--One in which all animals in the herd must be validated by the person officially performing the inventory verification.]

(15) Enrolled Herd--A herd that has enrolled in the commission's Herd Certification Program and has met the minimum requirements defined in 9 CFR Part 55. Upon initial enrollment, all herds will be placed in First Year status unless the herd is assembled from other herds already participating in the program, and in such case will assume the status of the lowest herd. [Positive Herd--A herd in which a CWD-positive animal resided at the time it was diagnosed.]

(16) Executive Director--The Executive Director of the Texas Animal Health Commission, or any individual authorized to act for the Executive Director. [Suspicious Animal--A cervid which has clinical signs that resemble the CWD profile.]

(17) [(10)] Farmed or Captive--Privately or publicly maintained or held cervids for economic or other purposes within a perimeter fence or confined area, or [temporarily ] captured from a free-ranging [wild] population for interstate or intrastate movement and release.

[(17) Suspicious Herd--A herd in which one or more animals are observed with clinical signs that resemble the CWD profile.]

(18) [(11)] Herd--An animal or group of animals that is [are]:

(A) Under common ownership, control, or supervision and are grouped on one or more parts of any single premises, including a lot, farm, or ranch [(lot, farm, or ranch)] where commingling of animals occurs; or

(B) All [A single herd also is considered to be all] animals under common ownership, control, or supervision on two or more geographically-separated premises where [which are geographically separated but on which] animals are [have been] commingled or had direct contact with one another. [If an owner wishes to maintain separate herds, he or she must maintain separate herd inventories, records, working facilities, water sources, equipment, and land use. Herds must be separated by a distance of 30 feet or more. No commingling of animals may occur. If movement of animals does occur between herds, this movement must be recorded as it would if they were separately owned herds.]

(19) Herd Certification Program--The program operated by the commission for the certification of CWD status cervid herds that meets the requirements of 9 CFR Part 55, subpart B.

(20) Herd Plan--A written herd or premises management agreement developed by the commission, the herd owner, and other affected parties. A herd plan sets forth the steps to take to control the spread of CWD from a CWD-positive herd, to control the risk of CWD in a CWD-exposed or CWD-suspect herd, or to prevent introduction of CWD into that herd or any other herd. Requirements to prevent or control the possible spread of CWD, depending on the particular circumstances of the herd and its premises, including but not limited to depopulation of the herd, specifying the time when a premises must not contain cervids after CWD-positive, CWD-exposed, or CWD-suspect animals are removed from the premises, fencing requirements, selective culling of animals, restrictions on sharing and movement of possibly contaminated livestock equipment, premises cleaning and disinfection requirements, and other requirements may also be included in a herd plan. A herd plan requires the following: specified means of identification for each animal in the herd, regular examination of animals in the herd by a veterinarian for clinical signs of CWD, reporting to a commission representative any clinical signs of CWD, and recordkeeping.

(21) Herd Status--The status of a herd assigned under the commission CWD Herd Certification Program in compliance with Section 40.3 indicating a herd's relative risk for CWD. Herd status is the number of years of monitoring without evidence of the disease and any specific determinations that the herd has contained or has been exposed to a CWD-positive, CWD-exposed, or CWD-suspect animal. When a herd is first enrolled in the CWD Herd Certification Program, it will be placed in First Year status; except that, if the herd is composed solely of animals obtained from herds already enrolled in the program, the newly enrolled herd will have the same status as the lowest status of any herd that provided animals for the new herd. If the herd continues to meet the requirements of the program, each year, on the anniversary of the enrollment date the herd status will be upgraded by one year. One year from the date a herd is placed in Fifth Year status, the herd status will be changed to Certified, and the herd will remain in Certified Status as long as it is enrolled in the program, provided its status is not lowered, suspended, or revoked.

(22) High-risk area or county--An area or county that is epidemiologically determined to have a high probability for species susceptible for having, developing or being exposed to CWD.

(23) Hold Order--A written commission order and action restricting movement of a herd, animal, or animal product pending the determination of CWD status.

(24) [(12)] Limited Contact--Any brief, incidental contact between cervids from different herds [with a farmed animal] such as in sale or show rings and alleyways at fairs, livestock auctions, sales, shows, and exhibitions. Limited contact does not include penned animals having less than ten feet of physical separation or contact through a fence, or any activity where uninhibited contact occurs such as sharing an enclosure, a section of a transport vehicle, [sharing] equipment, food, or water sources, or contact with bodily fluids or excrement. Pens at fairs, livestock auctions, sales, shows, and exhibitions must be thoroughly cleaned and all organic material removed after use and before holding another animal.

(25) Location Identification Number (LID)--A nationally unique number assigned by the commission to a premises starting with the state postal abbreviation (TX) followed by six random alphanumeric characters. Each LID is a geographically distinct location associated with a verifiable physical address, geospatial coordinates, or other location descriptors. All herds in the CWD Herd Certification Program will be assigned a LID or PIN.

(26) Minimum Mortality Rate--Death loss from natural causes is expected to be five percent for white-tailed deer 12 months of age and older averaged over a three-year period, unless epidemiologically determined otherwise.

(27) [(13)] Official Animal Identification--A device or means of animal identification approved by USDA [APHIS for use in the Certification Program] to uniquely identify individual animals. The official animal identification must include a nationally unique animal identification number that adheres to one of the following numbering systems:

(A) National Uniform Eartagging System (NUES);

(B) Animal Identification Number (AIN);

(C) Premises-based number system using a Premises Identification Number (PIN) or Location Identification Number (LID) in conjunction with a livestock production numbering system; or

(D) Any other numbering system approved by the commission [Commission] for the identification of animals in commerce.

(28) Official CWD Test--A USDA-validated test of appropriate tissue samples for the diagnosis of CWD conducted in an approved laboratory.

(29) Premises Identification Number (PIN)--A nationally unique number assigned by the commission or USDA to a premises. Each PIN is a geographically distinct location associated with a verifiable physical address, geospatial coordinate, or other location descriptors.

(30) Quarantine--A written commission order and the action of restricting animal or animal product movement from or onto a premises because of the existence of or exposure to CWD.

(31) Release Facility--A privately owned, high-fenced premises where white-tailed deer or mule deer from a breeding facility are released for management as free-ranging animals. A release facility must be registered with and assigned a facility identification number (FID) by the Texas Parks and Wildlife Department.

(32) Status Date--The day, month, and year the commission approves a change in herd status.

(33) TAHC Authorized Veterinarian--A veterinarian who is licensed to practice medicine in Texas, Category II accredited by USDA APHIS VS and has satisfactorily completed TAHC disease control or eradication program training pursuant to 4 TAC Chapter 47.

(34) [(18)] Trace Herd--The term includes both trace-back and trace-forward herds. A trace-back herd is any herd that contributed an animal to a CWD-positive herd within the 5 years prior to the diagnosis of CWD in the positive herd [where an affected animal has resided during a 60 month period prior to death]. A trace-forward herd is any herd which has received animals from a CWD-positive [positive] herd during a 5-year [60 month] period prior to the diagnosis of CWD in the positive herd or from the identified date of entry of CWD into the positive herd [death of the affected animal].

§40.2.General Requirements.

(a) Procedures for issuing hold orders and quarantines.

(1) Any CWD-suspect herd [All herds suspicious of CWD, in which one or more animals are observed with signs which resemble the CWD profile,] shall be reported to a representative of the commission [Commission]. The herd shall be restricted by hold order until the epidemiologic investigation and diagnosis are complete [have been completed].

(2) A trace herd [Trace herds] shall be restricted by hold order until an epidemiologic investigation by the commission is complete [has been completed] and the herd meets [has met] all herd plan requirements [specified in a herd plan].

(3) A CWD-positive herd [CWD positive herds] shall be restricted by quarantine until the herd meets [has met] all herd plan requirements [specified in a herd plan].

(4) Any CWD-suspect [All suspicious], trace, and CWD-positive [positive] herds not complying with the [requirements of an] epidemiologic investigation or herd plan requirements shall be restricted by quarantine.

(b) Requirements for CWD-suspect, trace, or CWD-positive herds [Procedures in suspicious, trace, and positive herds].

(1) CWD-suspect [CWD suspicious] animals shall be presented to a representative of the commission [Commission] for the purpose of collection and submission of appropriate samples to an approved [official] laboratory for diagnosis.

(2) Disposition of a positive herd [without evidence of transmission within the herd] as determined by a TAHC or USDA epidemiologist following completion of the investigation. A herd plan will be developed by a commission [TAHC] or USDA epidemiologist in consultation with the herd owner, and, if requested, their veterinarian [(if requested by the owner)]. Unless otherwise determined by a commission epidemiologist and approved by the Executive Director, the [The ] herd plan shall include the following requirements for a period of five years:

(A) Routine visual inspection of all animals in the herd by a commission [TAHC] or USDA veterinarian for the purpose of early detection of CWD-suspect [CWD suspicious] animals.

(B) Annual verification of herd inventory by a commission [TAHC] or USDA veterinarian.

(C) Mandatory reporting of all CWD-suspect [CWD suspicious] animals and all death losses. Mortality in animals of any age shall be immediately reported to a commission [TAHC] or USDA veterinarian for the purpose of collection of appropriate samples for submission to an approved [official ] laboratory for CWD surveillance.

(D) CWD-exposed [CWD exposed] animals must be removed from the herd and:

(i) Humanely euthanized [destroyed], tested for CWD, and disposed of as specified in subsection (c) of this section; or

(ii) Maintained under hold order for 5 years [60 months] from the last exposure to a CWD-positive animal [case of CWD].

(E) The herd shall remain under quarantine for 5 years from the last exposure to a CWD-positive or a CWD-exposed animal and until such time that all herd plan requirements are met.

[(3) Disposition of a positive herd with evidence of transmission within the herd as determined by a TAHC or USDA epidemiologist following completion of the investigation. A herd plan will be developed by a TAHC or USDA epidemiologist in consultation with the owner, and their veterinarian (if requested by the owner). The herd plan shall include the following requirements for a period of five years:]

[(A) Routine visual inspection of all animals in the herd by a TAHC or USDA veterinarian for the purpose of early detection of CWD suspicious animals.]

[(B) Annual verification of herd inventory by a TAHC or USDA veterinarian.]

[(C) Mandatory reporting of all CWD suspicious animals and all death losses. Mortality in animals of any age shall be immediately reported to a TAHC or USDA veterinarian for the purpose of collection of appropriate samples for submission to an official laboratory for CWD surveillance.]

[(D) CWD exposed animals must be removed from the herd and:]

[(i) Humanely destroyed, tested for CWD, and disposed of as specified in subsection (c) of this section; or]

[(ii) Maintained under hold order for 60 months from the last case of CWD.]

[(E) The herd shall remain under quarantine for 60 months from the last case of CWD.]

(3) [(4)] Disposition of trace herds. A herd plan will be developed by a commission [TAHC ] or USDA epidemiologist in consultation with the owner, and, if requested, their veterinarian [(if requested by the owner)]. Unless otherwise determined by a commission epidemiologist and approved by the Executive Director, the herd plan shall require the following for 5 years the [The] herd plan shall include the following requirements for a period of five years:

(A) Routine visual inspection of all animals in the herd by a commission [TAHC] or USDA veterinarian for the purpose of early detection of CWD-suspect [CWD suspicious] animals.

(B) Annual verification of herd inventory by a commission [TAHC] or USDA veterinarian.

(C) Mandatory reporting of all CWD-suspect [CWD suspicious] animals and all death losses. Mortality in animals of any age shall be immediately reported to a commission [TAHC] or USDA veterinarian for the purpose of collection of appropriate samples for submission to an approved [official ] laboratory for CWD surveillance.

(D) CWD-exposed [CWD exposed] animals must be removed from the herd and:

(i) Humanely euthanized [destroyed], tested for CWD, and disposed of as specified in subsection (c) of this section; or

(ii) Maintained under hold order for 5 years [60 months] from the last potential exposure.

(c) Disposal [Destruction] of CWD-suspect and CWD-exposed [suspicious and CWD exposed] animals. Animals euthanized [destroyed] due to a presumptive positive [diagnosis] of CWD, including CWD-exposed [CWD exposed] animals in CWD-positive [positive] and trace herds, shall be humanely euthanized and [,] appropriate samples collected to confirm the diagnosis, and disposed of by deep burial or incineration, including all animal products, by-products, and contaminated materials:

(1) on the premises where a CWD diagnosis was disclosed; or

(2) at a facility approved by the Executive Director [executive director].

(d) Payment of indemnity. The commission [Commission] may participate in paying indemnity to purchase and dispose of CWD-positive, CWD-exposed, and CWD-suspect [destroy CWD positive animals, CWD exposed animals, and CWD suspect] animals. Subject to available funding, the amount of the state payment for any such animals will be five percent of the appraised value established in accordance with 9 CFR §55.3. This payment is in participation with any Federal indemnity payments made in accordance with 9 CFR §55.2.

§40.3.Herd Certification Program [Status Plans] for Cervidae.

(a) Enrollment Requirements. Herd owners who enroll in the Herd Certification Program must [agree to] maintain their herds in accordance with the following requirements [conditions]:

(1) Each animal must be identified no later than March 31 of the year following the year the animal is born using official animal identification [before reaching 12 months of age]. All animals less than 12 months [one year] of age shall be officially identified on a change of ownership or when moved from the premises [premise] of origin.

(2) Herd premises must have perimeter fencing adequate to prevent ingress and or egress of cervids. For herds established after October 15, 2021, the fence must be a minimum of 8 feet high.

(3) The herd owner shall:

(A) Report, within 72 hours, all farmed or captive cervids [five business days, animals] that escape [escape] or disappear [disappear], and all free-ranging [wild] cervids that enter the facility; and

(B) Test all deaths aged 12 months or older, including, but not limited to, animals killed on premises maintained for hunting and animals sent to slaughter [deaths (including animals killed on premises maintained for hunting and animals sent to slaughter) aged 12 months or older], in accordance with subsection (b) of this section.

(4) An annual inventory:

(A) An annual inventory shall be verified by a TAHC or USDA employee or a TAHC Authorized Veterinarian [TAHC personnel, USDA personnel, or an accredited veterinarian]. If requested by a herd owner [producer] to verify the inventory, the commission [Commission] will assess a fee of $100.00 per hour.

(B) The herd owner shall maintain herd records that include a complete inventory of animals with documents showing all births, deaths, acquisitions, dispositions, and escaped or disappeared animals[, and all test results for those animals that died]. The herd owner shall also maintain all test result records for those animals that died.

(C) For herd owners [animals] seeking to qualify for animal movement in interstate commerce, a complete herd inventory must be performed at the time a herd is enrolled and a complete herd inventory must be performed for all herds enrolled in the CWD Herd Certification Program no more than three years after the last complete herd inventory for the herd.

(D) The herd owner is responsible for assembling, handling, and restraining the animals and for all costs incurred to present the animals for inspection.

(5) To maintain separate herds, a herd owner shall maintain:

(A) Separate [Maintain separate] herd inventories and records;

(B) Separate working facilities;

(C) Separate water sources;

(D) Separate equipment [or cleaned and maintained in accordance with Appendix V of the CWD Program Standards]; and

(E) At [There shall be at] least 30 feet between the perimeter fencing around separate herds, and no commingling of animals may occur. Movement of animals between herds must be recorded as if they were separately owned herds.

(6) New animals may be introduced into the herd only from other herds enrolled in the CWD Herd Certification Program. Addition of animals from a lesser status herd will result in the receiving herd's status being lowered to that of the contributing herd.

(b) Testing Requirements. CWD test samples shall be collected and submitted to an approved [official] laboratory within 7 days of collection for CWD diagnosis using an official CWD test [a United States Department of Agriculture (USDA) validated test]. Test reporting shall be directed to the appropriate TAHC Region [Regional] Office. The samples may be collected by a state or federal animal health official, an accredited veterinarian, or a TAHC Certified CWD Postmortem Sample Collector. Tissue samples submitted must include the obex and at least one retropharyngeal lymph node from each animal being tested. If samples are missed, or poor-quality [poor quality] samples are submitted, the state epidemiologist or [his] designee will review the circumstances and determine if the herd status will be advanced, held, reduced, or removed. Unless epidemiologically determined otherwise by the commission, the number of samples submitted must meet the minimum mortality rate.

(c) Herd Status. Herd status designation shall be assigned on the basis of the number of years of participation provided that the herd meets all requirements of the Herd Certification Program. If a herd is designated CWD-positive or CWD-exposed, it will immediately be placed in Suspended Status until such time when all herd plan requirements are met. [CWD is not confirmed in the herd:]

(1) First Year - starts on enrollment when the herd is in compliance with the CWD Herd Certification Program requirements. [requirements of the CWD Herd Certification Program.]

(2) Second Year - starts on the anniversary date of the first year after full completion of the requirements for first year status.

(3) Third Year - starts on the anniversary date of the second year after full completion of the requirements for second year status.

(4) Fourth Year - starts on the anniversary date of the third year after full completion of the requirements for third year status.

(5) Fifth Year - starts on the anniversary date of the fourth year after full completion of the requirements for fourth year status.

(6) Certified Status - achieved after five years participation in the program and in compliance with all the program requirements. To achieve Certified Status, farmed cervid herds must conduct CWD surveillance on all deaths of cervids aged 12 months and older, including animals in the enrolled herd, animals that are slaughtered on premises or at a slaughter establishment, and animals from an enrolled breeding herd that move to a release facility under common ownership for at least 5 consecutive years, unless the herd owner purchases or assembles a herd of animals from herds with Certified Status and concurrently enrolls the resulting herd under this section.

(7) Herd status changes [Additions to enrolled herds].

(A) Additions may originate from herds of equal or greater [higher] status with no change in the status of the receiving herd.

(B) Additions may originate from herds of lesser [lower] status with the receiving herd acquiring the lower status of the herd(s) involved.

(C) If a herd participating in the program acquires animals from a nonparticipating herd, the receiving herd reverts to First Year status with a new status date listed as the date of acquisition of the animal(s) except when the added animal(s) is tested "´┐Żnot detected' postmortem within the first year after entry into the receiving herd.

(D) The herd owner shall notify the commission of lesser status additions within 5 business days of such acquisition. Herd status will be changed upon notification.

(E) Farmed cervids commingled with other farmed cervids assume the status of the lowest program status animal in the group.

(F) A new herd established from multiple sources will be assigned the status date of the lowest status animal in the herd.

(G) A herd established and sourced solely from other Certified herds will be enrolled as Certified and must continue to demonstrate compliance with Herd Certification Program requirements to maintain Certified Status.

(d) Identification Requirements. Each animal required to be identified by this section must have at least two forms of animal identification attached to the animal.

(1) One of the animal identifications must be a nationally unique animal identification number [that is] linked to that animal in the CWD National Database or a TAHC-approved database.

(2) The second [Second] identification must be unique for the individual animal within the herd and linked to the CWD National Database or a TAHC-approved database.

(e) Recordkeeping [Record Keeping]. The herd owner shall maintain records of [for] animals including any movements and for a transfer of ownership for 5 years after the animal has left the herd or has died. Records must be made available to a TAHC representative upon request and presented at the time of each annual inspection or inventory [, and provide those to Commission personnel upon request. Records required to be kept under the provisions of this section shall be maintained for not less than five years]. The records shall include the following information:

(1) All identifications (tags, tattoos, electronic implants, etc.);

(2) Birth date;

(3) Species;

(4) Sex;

(5) Date of acquisition and source of each animal that was not born into the herd, including name and address [(owner name, city, state)];

(6) Date of removal and destination of any animal removed from the herd, including name and address [(owner name, city, state)];

(7) Date of death and cause, if known, [and cause of death] for animals dying within the herd; [(if cause is known); and]

(8) Date of CWD sample submission, submitter, owner, premises, animal information, and official CWD test results from an approved laboratory; and [.]

(9) Age.

(f) Inspections. Enrolled herds are required to have an initial inspection, annual inspection and physical inspection and may not advance in status until the required inspections have been completed, submitted, reconciled and approved by the commission. [Inspection. A premise where a herd is located may be inspected by the Commission to determine compliance with the requirements.]

(1) Routine Program Inspections

(A) Initial Inspection - an initial inspection of a cervid breeding facility must be conducted by a commission representative upon enrollment to:

(i) Visually observe each cervid, and the herd as a whole, for clinical signs of CWD;

(ii) Verify and record the two unique animal identification numbers for each individual animal, one of which is a nationally unique official animal identification present on the date the herd is initially enrolled in the Herd Certification Program. At least one of the two identification devices will be visually verified and reconciled with the herd owner's records;

(iii) Perform a herd inventory not more 60 days prior to the herd's date of enrollment, unless an alternative timeframe is suggested by a commission epidemiologist and approved by the Executive Director; and

(iv) Confirm perimeter fencing is adequate to prevent ingress and egress of cervids, structurally sound, in good repair, and meets any applicable height requirements.

(B) Annual Inspection - an annual inspection of a cervid breeding facility must be conducted by a commission representative or a TAHC Authorized Veterinarian 11 to 13 months after the last inspection to:

(i) Visually observe the herd for clinical signs of CWD;

(ii) Examine records for completeness and accuracy;

(iii) Reconcile the previous year's inventory and all documented dispositions and acquisitions. One identification must be visually verified on at least 50% of the animals;

(iv) Review and reconcile the herd owner's records with the overall head count. Any discrepancies will require a complete herd inventory to determine the extent of the discrepancy;

(v) Verify that CWD sampling requirements are met. Document deficient, missed or poor-quality samples; and

(vi) Inspect perimeter fencing for minimum standards and document needed repairs.

(C) Physical Herd Inspection - a physical herd inspection of a cervid breeding facility will be conducted by a commission representative or a TAHC Authorized Veterinarian no more than 3 years after the initial inspection or last complete physical herd inspection to:

(i) Visually observe the herd for clinical signs of CWD;

(ii) Examine records for completeness and accuracy;

(iii) Reconcile the previous year's inventory and all documented dispositions and acquisitions. One identification must be visually verified on 100% of the animals;

(iv) Review and reconcile the herd owner's records with the overall head count;

(v) Verify that CWD sampling requirements are met. Document deficient, missed or poor-quality samples; and

(vi) Inspect perimeter fencing for minimum standards and document needed repairs.

(2) Compliance Inspection. A premises where a herd is located may be inspected at any time by a commission representative to determine compliance with the Herd Certification Program and the requirements of this chapter.

(3) The herd owner is responsible for assembling, handling, and restraining the animals and for all costs incurred to present the animals for inspection.

(4) The herd owner must notify the TAHC Region Office at least 72 hours prior to any inspection performed by a TAHC Authorized Veterinarian.

(g) Fees. The commission will assess a fee of $100 per hour for each annual inventory, initial inspection, annual inspection or physical herd inspection performed by a commission representative. [Participation in a Commission CWD Herd Status Program for Cervidae requires that a fee be paid as provided for in §33.5 of this title (relating to Herd Status/Certification Fees). An annual inventory verified by Commission personnel is assessed a fee of $100.00 per hour.].

(h) Revocation [Cancellation] or suspension of enrollment by the Executive Director. The Executive Director may revoke [cancel] or suspend enrollment after determining [that] the herd owner failed to comply with any requirements in [of] this chapter. Notification will be provided to inform the herd owner of the reasons for the action before enrollment is revoked or suspended [Before enrollment is canceled or suspended, notification will be provided which will inform the herd owner of the reasons for the action].

(1) The herd owner may appeal the revocation [cancellation] of enrollment of a herd, or loss or suspension of herd status, by writing to the Executive Director within 15 days after receipt of the action. The appeal must include all of the facts and reasons upon which the herd owner relies upon to show that the reasons for the action are incorrect or do not support the action.

(2) The herd owner may request a meeting, in writing, with the Executive Director [of the Commission] within 15 days of receipt of the action and set forth a short, plain statement of the issues that shall be the subject of the meeting, after which:

(A) the meeting will be set by the Executive Director no later than 21 days from receipt of the request for a meeting;

(B) the meeting [or meetings] shall be held in Austin; and

(C) the Executive Director shall render a written decision [his decision in writing] within 14 days from date of the meeting.

(3) Upon receipt of a decision or order by the Executive Director which the herd owner wishes to appeal, the herd owner may file an appeal within 15 days in writing with the Chairman of the Commission and set forth a short, plain statement of the issues that shall be the subject of the appeal.

(4) The subsequent hearing will be conducted pursuant to the provisions of the Administrative Procedure Act, Texas Government Code, Chapter 2001, [and Texas Register Act] and Chapter 32 of this title (relating to Hearing and Appeal Procedures).

(5) If the Executive Director determines[, based on epidemiological principles,] that other action is necessary based on epidemiological principles, the Executive Director shall provide the herd owner [with] written notice of the action.

(i) Voluntary Cancellation. A herd owner may decide to cancel participation in the CWD Herd Certification Program at any time unless otherwise required by state law or a signed herd plan. The cancellation must be in writing to a commission representative. Herd owners who voluntarily cancel their participation may re-enroll at any time as a First-Year status herd and will receive a new enrollment and status date.

(j) Herd Relocation. If a herd moves, either intrastate or interstate, it must meet all state intrastate or federal interstate movement requirements. In addition, the commission representative must be notified of the relocation within 30 days.

(k) If the herd owner is not in compliance with this chapter, a commission representative may withhold advancement, lower, suspend, or revoke herd status.

§40.4.Entry Requirements.

(a) Entry [The entry] requirements for live animals transported into this state are located in [Chapter 51,] §51.10 of this title (relating to Cervidae).

(b) CWD Susceptible Species Carcass Movement Restrictions for Entering this [the] State. No person may transport into this state or possess any part of a CWD susceptible species from a state, Canadian province, or other place outside of Texas where CWD has been detected in free-ranging or captive herds, except as provided in this section. [:]

[(1) Transport into this state or possess any part of a susceptible species from a state, Canadian province, or other place outside of Texas where CWD has been detected in free-ranging or captive herds, except as provided in this section.]

(c) [(2)] Subsection (b) [(b)(1)] of this section does not apply to CWD susceptible species processed in accordance with this section as follows:

(1) [(A)] meat that has been cut up and packaged (boned or filleted);

(2) [(B)] a carcass that has been reduced to quarters with no brain or spinal tissue present;

(3) [(C)] a cleaned hide (skull and soft tissue must not be attached or present);

(4) [(D)] a whole skull (or skull plate) with antlers attached, provided the skull plate has been completely cleaned of all soft tissue;

(5) [(E)] finished taxidermy products;

(6) [(F)] cleaned teeth; or

(7) [(G)] tissue prepared and packaged for delivery to and use by a diagnostic or research laboratory.

(d) [(c)] The skinned or unskinned head of a CWD susceptible species from a state, Canadian province, or other place outside of Texas may be transported to a taxidermist for taxidermy purposes, provided all brain material, soft tissue, spinal column and any unused portions of the head are disposed of in a landfill in Texas permitted by the Texas Commission on Environmental Quality.

§40.5.Surveillance and Movement Requirements for Exotic CWD Susceptible Species.

(a) Definitions:

(1) Eligible Mortality--The death from any cause of an exotic CWD susceptible species [Exotic CWD Susceptible Species] that is 16 months of age or older on any and all premises which raise and/or contain any exotic CWD susceptible species [Exotic CWD Susceptible Species], whether a premises engages in live transport of these animals or not. This includes hunter harvest or herd culling on the premises, natural mortalities on the premises, and [or] animals moved directly to slaughter.

(2) Exotic CWD Susceptible Species--A non-native cervid species determined to be susceptible to CWD, which means a species that has had a diagnosis of CWD confirmed by [means of] an official test conducted by an approved laboratory [a laboratory approved by USDA/APHIS]. This includes North American elk or wapiti (Cervus canadensis [Canadensis]), red deer (Cervus elaphus), Sika deer (Cervus nippon [Nippon]), moose (Alces alces), reindeer and caribou (Rangifer tarandus), and any associated subspecies and hybrids. All mule deer, white-tailed deer, and other native species under the jurisdiction of the Texas Parks and Wildlife Department are excluded from this definition and application of this section.

(3) Premises--A physical location(s) which is contiguous, [that is] under common ownership or management, and represents a unique and describable geographic location.

(4) Transport--Movement of an exotic CWD susceptible species [Exotic CWD Susceptible Species] from one non-contiguous property or premises to another.

(b) Surveillance Requirements. Each calendar year, the owner of a premises shall have all eligible mortalities [CWD] tested for CWD until such time that three animals are tested and valid test results are obtained. The owner of the premises shall ensure that the CWD samples are properly collected and submitted in compliance with the [collections] requirements for collection. The owner must report the test results to the commission within 30 days of receiving the test results. This requirement applies to any premises where exotic CWD susceptible [these] species are located and is not dependent on the live movement of any of these species.

(c) Movement Reporting and Identification Requirements.

(1) Live exotic CWD susceptible species [Exotic CWD Susceptible Species] moved or transported within the state shall be identified with an official animal identification device, which may include an eartag that conforms to the USDA alphanumeric National Uniform Eartagging System [national uniform ear tagging system] (NUES), [is] a visible and legible animal identification number (AIN) or other identification methods approved by the commission, including a RFID device.

(2) To [In order to] move live exotic CWD susceptible species [Exotic CWD Susceptible Species] to or from a premises, the owner must obtain a PIN or LID from the commission or USDA [Premises Identification Number (PIN). A PIN means a unique official seven character alphanumeric identification code issued under this chapter to identify a specific and unique premises.]

(3) An owner of a premises where exotic CWD susceptible species [Exotic CWD Susceptible Species] are located within a high fence shall keep herd records that include an annual inventory and mortality records [log] for all exotic CWD susceptible species [Exotic CWD Susceptible Species]. The inventory shall be reconciled and submitted to the commission on or before April 1 of each year. Annual inventory records shall be retained for one year following submission to the commission.

(4) A complete movement record for all live exotic CWD susceptible species [Exotic CWD Susceptible Species that are] moved onto or off of a premises shall be submitted to the commission, either in hard or electronic copy on forms provided or authorized by the commission. The person moving the exotic CWD susceptible species [Exotic CWD Susceptible Species] must have documentation with the exotic CWD susceptible species [Exotic CWD Susceptible Species] being moved to show compliance with the requirements of this subsection. A copy of this documentation must be provided to any market selling these species. Such record shall be submitted within 48 hours of the movement. Movement reporting shall be directed to the commission by [either] writing to Texas Animal Health Commission, CWD Susceptible Species Reporting, P.O. Box 12966, Austin, Texas 78711-2966; [or] by fax to (512) 719-0729; or by email to CWD_reports@tahc.texas.gov.

(d) Testing Requirements. CWD test samples shall be collected and submitted to an approved [official] laboratory for CWD diagnosis using an official CWD [a USDA validated] test for all eligible mortalities. Test reporting shall be directed to the appropriate TAHC Region Office [commission region office]. The samples may be collected by a state or federal animal health official, an accredited veterinarian, or a Certified CWD Postmortem Sample Collector. Tissue samples shall be the obex and one [a] retropharyngeal lymph node from each test-eligible animal [tested eligible] mortality.

(e) Test Result Reporting. The owner shall report all test results to the commission within 30 days of receiving the test results by [either] writing to Texas Animal Health Commission, CWD Susceptible Species Reporting, P.O. Box 12966, Austin, Texas 78711-2966; [or] by fax to (512) 719-0729; or by email to CWD_reports@tahc.texas.gov.

(f) Mortality Recordkeeping [Record Keeping].

(1) The owner of a premises where an exotic CWD susceptible species [Exotic CWD Susceptible Species] eligible mortality occurs shall maintain the following mortality records:

(A) the date the exotic CWD susceptible species died [Exotic CWD Susceptible Species dies] or was harvested;

(B) the species, age, and sex of the animal;

(C) any RFID or NUES tag number affixed to the animal; and

(D) any other identification number, official or unofficial, on the animal.

(2) The mortality records shall be made available upon request to any commission representative [employee] acting in the performance of official duties.

(3) The mortality records shall be submitted to the commission on or before April 1 of each year [either] by writing to Texas Animal Health Commission, CWD Susceptible Species Reporting, P.O. Box 12966, Austin, Texas 78711-2966; [or] by fax to (512) 719-0729; or by email to CWD_reports@tahc.texas.gov.

(4) The mortality record shall be on a form provided or approved by the commission and shall be retained for [a period of] one year following submission to the commission.

(g) Inspection. To [In order to] ensure compliance with these rules, a premises where exotic CWD susceptible species [Exotic CWD Susceptible Species] are located may be inspected by the commission or authorized agents of the commission.

(h) Dealer Requirements. A dealer is a person engaged in the business of buying or selling exotic CWD susceptible species [Exotic CWD Susceptible Species] in commerce on the person's own account, as an employee or agent of a vendor, purchaser, or both, or on a commission basis. To maintain separate herd status for the animals a dealer sells, a dealer shall maintain separate herd facilities and separate water sources; there shall be at least 30 feet between the perimeter fencing around separate herds; and no commingling of animals may occur. Movement of animals between herds must be recorded as if they were separately owned herds. A dealer shall maintain records for all exotic CWD susceptible species [Exotic CWD Susceptible Species] transported within the state or where there is a transfer of ownership, and provide these to a commission representative [personnel] upon request. Records required to be kept under the provisions of this section shall be maintained for not less than five years and shall include the following information:

(1) Owner's name;

(2) Location where the animal was sold or purchased;

(3) Official identification and, if applicable, [ID and/or] Ranch tag; note any retags [(additional field for retag)];

(4) Sex [Gender] and age of animal;

(5) Source of animal (if purchased addition);

(6) Movement to other premises; and

(7) Disposition of the animal.

§40.6.CWD Movement Restriction Zones.

(a) Definitions:

(1) Check Station--TPWD-established [Department established] mandatory check stations in any CZ or SZ or any portion of a CZ or SZ for the purpose of collecting biological information on CWD [Chronic Wasting Disease (CWD)] susceptible species taken within a CZ or SZ.

(2) CWD Containment Zone (CZ)--A geographic area in this state which CWD has been detected or the commission has determined, using the best available science, a high risk of CWD exists or may exist [which would include a known affected area or a (quarantined) premises under a herd plan because a positive result was obtained in a CWD susceptible species or an area within Texas where CWD has been detected or where there is a high risk of CWD existing or where the commission has determined may exist].

(3) CWD Surveillance Zone (SZ)--A geographic area in the state which the commission, using the best available science, has determined or where there is a risk of CWD existing and surveillance is necessary.

(4) Exotic CWD [Non-Native] Susceptible Species--A non-native cervid species, which includes North American elk or wapiti (Cervus canadensis), [(Cervus Canadensis)] red deer (Cervus elaphus), [(Cervus elaphus),] Sika deer (Cervus nippon), [(Cervus Nippon),] moose (Alces alces), [(Alces alces),] reindeer and caribou (Rangifer tarandus), and any associated subspecies and hybrids.

(5) Final processing--The cleaning and processing by more than quarters of CWD susceptible species for cooking or storage purposes. [CWD Native Susceptible Species--All mule deer, white-tailed deer, and native species under the jurisdiction of the Texas Parks and Wildlife Department are excluded from this definition and application of this section.]

(6) Department--Texas Parks and Wildlife Department.

(6) [(7)] High fence premises--A premises enclosed on all sides by a fence adequate to prevent the ingress and [or] egress of all exotic [non-native] CWD susceptible species.

(7) Native CWD Susceptible Species--All mule deer, white-tailed deer, and other native species under the jurisdiction of the TPWD are excluded from this definition and application of this section.

(8) Processing facility--A stationary facility designed and constructed to store or process CWD susceptible species.

(9) TPWD--The Texas Parks and Wildlife Department.

(10) [(8)] Unnatural Movement--Any artificially induced movement of a live CWD susceptible species or the carcass of a CWD susceptible species.

(b) Declaration of area restricted for CWD. CWD has been detected in susceptible species in different locations in Texas. This creates a high risk for CWD exposure or infection in CWD susceptible species in those [these] geographic areas. In order to protect other areas of the state from the risk of exposure and spread of CWD, restricted areas, such as containment zones and surveillance zones, are created to protect against the spread of and exposure to CWD and have necessary surveillance to epidemiologically assess the risk. The high-risk [high risk] areas are delineated as follows:

(1) Containment Zone Boundaries:

(A) - (D) (No change.)

(E) Containment Zone 6. That portion of the state within the boundaries of a line beginning in Lubbock County where County Road (C.R.) 3600 intersects with E. Division Street in Slaton; thence west along E. Division Street to S. New Mexico Street; thence northwest along S. New Mexico Street to Railroad Avenue; thence northwest along Railroad Avenue to Industrial Drive; thence northwest along Industrial Drive 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 F.M. 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 Street.

(2) Surveillance Zone Boundaries:

(A) - (B) (No change.)

(C) Surveillance Zone 3. That portion of the state not within the CZ described in paragraph (b)(1)(C) of this subsection 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. 1435 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 within the boundaries of a line beginning at U.S. 90 in Hondo in Medina County; thence west along U.S. 90 to the Sabinal River in Uvalde County; 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 FM 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 S.H. 205; thence southeast along S.H. 205 to U.S. 80; thence east along U.S. 80 to North 4th Street in Wills Point; thence north along North 4th Street to F.M. 751, then north along F.M. 751 to Lake Tawakoni; 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 to S.H. 205.

(c) Containment Zone Requirements:

(1) Movement. No exotic [non-native] CWD susceptible species may be transported outside the CZ unless from a herd with a Certified Status [certified status] as established through §40.3(c)(6) (relating to Herd Certification Program [Status Plans] for Cervidae) of this chapter.

(2) Released Animals. No exotic [non-native ] CWD susceptible species may be released within the CZ outside a high fence premises.

(3) Testing. All exotic [non-native] CWD susceptible species, 16 months of age or older, that are hunter harvested shall be tested for CWD. No part of a carcass of a CWD susceptible species, either killed or found dead may be removed from the CZ unless a testable CWD sample from the carcass is collected and tested. The results shall be provided to the commission or the TPWD [Department] within 30 days of receiving the test results.

(4) Carcass Movement Restrictions. No part of a carcass of a CWD susceptible species, either killed or found dead, within the CZ may be removed from the CZ unless it is in accordance with the requirements of subsection (e) [(g)] of this section.

(5) Escaped Animals. Any escaped exotic [non-native ] CWD susceptible species which originated or resided in a CZ shall be captured and returned to the high fence premises of origin.

(6) Herd Plans. Facilities and associated properties in the CZ that have been issued a herd plan shall operate in accordance with [to] the herd plan requirements as determined by the commission.

(7) Identification. All exotic [non-native ] CWD susceptible species released in a CZ shall be identified with a visible official identification device, which may include an eartag that conforms to the USDA alphanumeric National Uniform Eartagging System or [national uniform ear tagging system and/or] an animal identification number (AIN), which [and] may include a RFID device. If a CWD susceptible species is released into a high fence premises, the animal shall retain the acceptable official identification.

(d) Surveillance Zone Requirements:

(1) Movement. Prior to the movement of an exotic [a non-native] CWD susceptible species outside an SZ or from one premises in the SZ to another premises within the SZ, the premises of origin shall have an epidemiological risk assessment conducted by the commission.

(2) Released Animals. No exotic [non-native ] CWD susceptible species may be released within the SZ outside a high fence premises.

(3) Testing. All exotic [non-native] CWD susceptible species, 16 months of age or older, that are hunter harvested shall be tested for CWD. No part of a carcass of a CWD susceptible species, either killed or found dead may be removed from the SZ unless a testable CWD sample from the carcass is collected and tested. The results shall be provided to the commission or the TPWD [Department] within 30 days of receiving the test results.

(4) Carcass Movement Restrictions. No part of a carcass of a CWD susceptible species, either killed or found dead, within the SZ may be removed from the SZ unless it is in accordance with the requirements of subsection (e) of this section.

(5) Escaped Animals. Any escaped exotic [non-native ] CWD susceptible species which originated or resided in an SZ shall be captured and returned to the high fence premises of origin.

(6) Herd Plans. Facilities and associated properties in the SZ that have been issued a herd plan shall operate in accordance with the herd plan requirements as determined by the commission.

(7) Identification. All exotic [non-native ] CWD susceptible species released in an SZ shall be identified with a visible official identification device, which may include an eartag that conforms to the USDA alphanumeric National Uniform Eartagging System or [national uniform ear tagging system and/or] an animal identification number (AIN), which may include a RFID device. If a CWD susceptible species is released into a high fence premises, the animal shall retain the acceptable official identification.

(e) Carcass Movement Restrictions:

(1) No person shall transport or cause the transport of any part of a CWD susceptible species from a property within a CZ or SZ unless:

(A) meat has been cut up and packaged (boned or filleted);

(B) a carcass has been reduced to quarters with no brain or spinal tissue present;

(C) a cleaned hide (skull and soft tissue must not be attached or present);

(D) a whole skull (or skull plate) with antlers attached, provided the skull plate has been completely cleaned of all soft tissue;

(E) finished taxidermy products;

(F) cleaned teeth; or

(G) tissue prepared and packaged for delivery to and use by a diagnostic or research laboratory with results accessible to the commission.

(2) A CWD susceptible species harvested in a CZ or SZ may be transported from the CZ or SZ, provided it is accompanied by a TPWD-issued [Department-issued] check-station receipt, which is required during the operation of the mandatory TPWD [Department] check-stations in the CZ or SZ, and that receipt shall remain with the CWD susceptible species until it reaches the possessor's permanent residence, a processing facility for final processing, or another location as permitted by the commission on a VS Form 1-27. [The skinned or unskinned head of a susceptible species from a CZ or SZ may be transported to a taxidermist for taxidermy purposes, provided all brain material, soft tissue, spinal column, and any unused portions of the head are disposed of by the taxidermist in a landfill in Texas permitted by the Texas Commission on Environmental Quality.]

(3) The skinned or unskinned head of a CWD susceptible species from a CZ or SZ may be transported to a taxidermist for taxidermy purposes, provided all brain material, soft tissue, spinal column, and any unused portions of the head are disposed of by the taxidermist in a landfill permitted by the Texas Commission on Environmental Quality.

(f) The Executive Director may authorize movement. If movement is necessary or desirable to promote the objectives of this chapter or [and/or] to minimize the economic impact of the restricted CWD susceptible species without endangering those objectives or the health and safety of other CWD susceptible species within the state, the Executive Director may authorize movement in a manner that creates minimal risk to the other CWD susceptible species [animals] in the state.

(g) A commission representative [Commission staff] shall annually review the movement restriction [restrictions] zones and recommend [make recommendations ] to the commission [on] whether to modify or rescind the zones [should be modified or rescinded].

§40.7.Executive Director Declaration of a CWD Movement Restriction Zone.

(a) Definitions:

(1) High risk area or county--An area or county that is epidemiologically judged to have a high probability for species susceptible for having, developing or being exposed to Chronic Wasting Disease (CWD).

[(2) Hold Order--A document restricting movement of a herd, unit, or individual animal pending the determination of its s disease status.]

(a) [(b)] Order Declaring a CWD High-Risk Area or [High Risk] County (Order) [or Area]. The Executive Director [of the Texas Animal Health Commission] may issue an Order [order] to declare a CWD high-risk [high risk] area or county based on sound epidemiological principles for disease detection, control, and eradication. The epidemiological criteria used for designating an area or county as high risk may include the presence of disease, multiple CWD-positive [positive] animals in the area, and common husbandry and animal use practices that could lead to disease exposure.

(b) [(c)] The Order shall contain the following elements:

(1) The epidemiological criteria for which the order is being issued.

(2) A description of the area or county determined to be high risk that enables a person to identify the area and determine if a premises [premise] is included in the area.

(3) A statement that movement of CWD susceptible species is prohibited, if the Executive Director determines the threat of disease spread warrants such action.

(4) Any exceptions, terms, conditions, or provisions prescribed under this chapter [must be stated in the order].

(5) The [State the] class of persons authorized by the commission or the Executive Director to issue certificates or permits permitting movement.

(6) Any authorized movement certificate or permit must be issued in conformity with the requirements stated in the high-risk Order [high risk notice]:

(A) The Executive Director may provide [for] a written certificate or written permit authorizing the movement of CWD susceptible species from locations where the CWD susceptible species have been restricted.

(B) The certificate or permit must be issued by a commission representative [Commission personnel or other person authorized by the Commission to issue a certificate or permit].

(7) If the Order [order] prohibits the movement of any CWD susceptible species until tested negative for the disease, the Executive Director may prescribe:

(A) any exceptions;

(B) terms;

(C) conditions; or

(D) provisions [that] the Executive Director considers necessary or desirable to promote the objectives of this chapter or to minimize the economic impact of the quarantine [the equine] without endangering those objectives or the health and safety of other CWD susceptible species.

(c) [(d)] Publication of Notice. The Executive Director shall give notice of the Order:

(1) By publishing notice in a newspaper published in the county where [in which] the high-risk [high risk] area is established; or

(2) By delivering a written notice to the owner or caretaker of the animals or places to be restricted.

§40.8.Enforcement and Penalties.

(a) A person who violates a rule or order under this chapter is subject to administrative penalties, criminal penalties, sanctions, and civil remedies as authorized by Chapter 161, Texas Agriculture Code.

(b) An administrative penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102880

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 719-0724


CHAPTER 45. REPORTABLE AND ACTIONABLE DISEASES

4 TAC §§45.1 - 45.4

The Texas Animal Health Commission (commission) proposes amendments to Title 4, Texas Administrative Code, concerning the title of Chapter 45, "Reportable Diseases", §45.1, concerning Definitions, §45.2, concerning Duty to Report, and the additions of §45.3, concerning Reportable and Actionable Disease List and §45.4, concerning Enforcement and Penalties.

BACKGROUND AND SUMMARY OF PROPOSED AMENDMENTS AND ADDITIONS

During the 87th Texas Legislative Session, Senate Bill 705 removed the statutorily prescribed list of diseases from which the commission is tasked with protecting all livestock, exotic livestock, domestic fowl, and exotic fowl as recommended by the Sunset Advisory Commission's review process. Instead of those statutorily prescribed disease lists, Senate Bill 705 amended Texas Agriculture Code §161.041 and, effective September 1, 2021, requires the commission to adopt and periodically update rules listing the diseases that require control and eradication. Senate Bill 705 also requires the commission to adopt and periodically update rules listing the diseases that the commission determines require reporting pursuant to Section 161.101 of the Texas Agriculture Code. As such, the commission proposes to amend the title of Chapter 45 of the Texas Administrative Code to "Reportable and Actionable Diseases" to accurately reflect which diseases are reportable to and actionable by the commission.

SECTION-BY-SECTION DISCUSSION

§45.1. Definitions

The proposed amendments to this section involve non-substantive editorial changes. In §45.1(1), the term is updated to reflect the new name of the international health agency. In §45.1(3), the "reportable animal disease" definition is added to clarify the diseases reportable to the USDA and align with Senate Bill 705 amendments to Sections 161.101 and 161.041 of the Texas Agriculture Code, which are effective September 1, 2021. In the proposed §45.1(5), "agents of disease transmission" is added to align with Section 161.041(b) of the Texas Agriculture Code.

§45.2. Duty to Report

The proposed amendments to subsection (a) include the addition of agents of disease transmission, updated terminology, and reorganizing which diseases must be reported pursuant to Section 161.101, Texas Agriculture Code. Subsection (b) proposed amendments clarify what information a veterinarian must report to the commission. The proposed additions are commonly reported to the commission, so the proposal will improve understanding and consistency in information reported to the commission. The proposed amendment would remove the Attached Graphic, which is a list of reportable diseases, and replace it with one new rule section reference to §45.3(c). Section 45.3(c) is a proposed rule that will consolidate multiple reportable disease lists into one reportable and actionable disease list to reduce confusion and improve understanding.

§45.3. Reportable and Actionable Disease List

This section is proposed in response to Senate Bill 705 repealing the disease list in Section 161.041 of the Texas Agriculture Code and requiring the commission to prescribe the list by rule. Subsection (a) lists the diseases the commission shall act to control or eradicate. Those diseases are diseases listed in the existing Section 161.041(a) or in other existing commission rules. Several disease names are changed to reflect the more common and current nomenclature. In subsection (a), infectious abortion and Malta fever from the existing Section 161.041, Texas Agriculture Code are proposed as brucellosis. Hog cholera is amended to classical swine fever, which also aligns with Senate Bill 1997 passed by the 87th Legislature. Bacillary white diarrhea among fowl is proposed as pullorum and fowl typhoid. The diseases from existing commission rules are: avian infectious laryngotracheitis, avian influenza, babesiosis, chronic wasting disease, equine piroplasmosis, fever ticks, scabies, scrapie, swine pseudorabies and trichomoniasis. Additionally, foreign or emerging diseases the Executive Director by order requires control or eradication is proposed to allow the commission to quickly act against a disease affecting livestock, exotic livestock, domestic fowl, or exotic fowl that is not covered on any list provided in this chapter.

Subsection 45.3(b) is proposed to list which diseases the commission may, but is not required to, act to control or eradicate. Subsection 45.3(c) is the new list of reportable and actionable diseases or agents of disease transmission list that updates and replaces the Attached Graphic in accordance with Senate Bill 705. The differences between the Attached Graphic in the existing §45.2 and the proposed list are as follows: bovine ephemeral fever, malignant catarrhal fever, louping ill (flavovirus), epizootic lymphangitis, and novel swine enteric coronavirus disease are removed because those diseases are no longer reportable to the World Organisation for Animal Health (OIE) or USDA. Several disease names are updated to reflect the more common names: African animal trypanosomiasis, arboviral encephalitis, avian chlamydiosis, and rabbit hemorrhagic disease. Equine herpesvirus-1 (EHV-1) is amended to equine herpesvirus myeloencephalopathy to clarify that the neurologic case of equine herpesvirus-1 is the specific EHV-1 case that must be reported. Three types of ticks are proposed to the multiple species list because those ticks are agents of disease transmission; fever ticks can cause cattle fever, bont ticks are vectors of Heartwater, and the Asian longhorned tick can carry multiple diseases. Finally, the proposed reportable and actionable disease list no longer indicates which diseases veterinarians must also report to the Texas Department of State Health Services (DSHS) because DSHS regulates that reporting in 25 TAC §97.3.

§45.4. Enforcement and Penalties

The proposed section describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Subsection (b) provides that administrative penalties may not exceed $5,000 each day a violation continues or occurs.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each year of the first five years the rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. Commission employees currently enforce these rules as part of their regular job duties and resources. Ms. Sines also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules, and the proposed rules do not have foreseeable implications relating to costs or revenues of state governments.

PUBLIC BENEFIT NOTE

Ms. Myra Sines also determined that for each year of the first five years the rules are in effect, the anticipated public benefit will be the commission's continued ability to detect and respond to diseases and agents of disease transmission that affect domestic and exotic livestock and fowl. The continued reporting requirements ensure the commission is timely notified to control the disease. In following the Sunset Advisory Commission's decision to prescribe the disease list by rule, the commission has more flexibility to prevent, manage, and eradicate reportable animal diseases. The proposed disease list also improves readability and reduces confusion by consolidating the number of disease lists and using more consistent and common disease names.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission determined that the proposed rules would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code §2001.0225 does not apply to the proposed rules because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure and, therefore, is not a major environmental rule.

TAKINGS ASSESSMENT

The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's right to his or her private real property that would otherwise exist in the absence of government action. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a takings.

ECONOMIC IMPACT STATEMENT

The commission determined that the proposed rules would not impact animal agricultural industries, which meet the definition of a small business or microbusiness pursuant to Texas Government Code, Chapter 2006, because the content of the proposal currently exists in statute or commission rule.

REGULATORY FLEXIBILITY ANALYSIS

The proposed rules do not have an adverse economic impact on small businesses, microbusinesses, or rural communities because the proposed rules do not create new regulations. Rather, continued notification to the commission allows the commission to act to control or eradicate animal diseases, which protects other similarly situated animals from consequential disease exposure. As such, the commission did not consider alternative methods of achieving the purpose of this proposed rule pursuant to Texas Government Code §2006.002(c)(2).

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). For each year of the first five years the proposed rules would be in effect, the commission determined the following:

1. The proposed rules would not create or eliminate a government program;

2. Implementation of the proposed rules would not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed rules would not require an increase or decrease in fees paid to the commission;

5. The proposed rules would not create a new regulation;

6. The proposed rules would not expand existing rules and will not otherwise limit or repeal an existing regulation;

7. The proposed rules would not increase the number of individuals subject to the regulation; and

8. The proposed rules would not adversely affect this state's economy.

COST TO REGULATED PERSONS

The commission determined the proposed rules follow the legislative requirement that the commission protect domestic and exotic livestock and fowl from communicable diseases. Additionally, the Sunset Advisory Commission found the commission's statutes did not allow for the most effective and efficient flexibility to prevent, manage, and eradicate reportable animal diseases. Based on that finding, Senate Bill 705 removed inconsistent disease lists creating confusion and instead requires the commission to adopt and update as needed a list of reportable animal diseases in rule. As such, the proposed rules are exempt from §2001.0045 of the Texas Government Code because the proposed rules are necessary to implement legislation, Senate Bill 705, which takes effect on September 1, 2021. Additionally, the rules do not impose a direct cost on a regulated person, state agency, a special district, or a local government within the state because the substance of the proposed amendments already exist.

REQUEST FOR COMMENT

Comments regarding the proposed rules may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax to (512) 719-0719, or by email to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The amendments and additions are proposed under the following statutory authority in Chapter 161 of the Texas Agriculture Code.

The commission is vested by §161.041(a) to protect all livestock, exotic livestock, domestic fowl, and exotic fowl from diseases the commission determines require control or eradication. The commission is authorized pursuant to §161.041(b) to act to eradicate or control any disease or agent of disease transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable, even if the agent of transmission is an animal species not subject to the jurisdiction of the commission. The commission may adopt rules necessary to carry out those purposes. Pursuant to Senate Bill 705 enacted by the 87th Texas Legislature, the disease list is removed and the commission is required to adopt the disease list by rule.

Pursuant to §161.046, titled "Rules", the commission may adopt rules as necessary for the administration and enforcement of Chapter 161, Texas Agriculture Code.

Pursuant to §161.101, titled "Duty to Report", a veterinarian, a veterinary diagnostic laboratory, or a person having care, custody, or control of an animal shall report to the commission the existence of diseases listed in rules adopted by the commission among livestock, exotic livestock, bison, domestic fowl, or exotic fowl. The commission shall adopt and periodically update rules listing the diseases that the commission determines require reporting under this section. Pursuant to Senate Bill 705 enacted by the 87th Texas Legislature, the disease list is removed and the commission is required to adopt the disease list by rule.

Pursuant to §161.145, titled "Veterinarian Failure to Report Diseased Animals", a veterinarian commits an offense if they willfully fail or refuse to comply with a provision of Subchapter F of Chapter 161 or with a rule adopted under Subchapter F.

Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.

The proposed rules do not affect other statutes, articles, sections, or codes.

§45.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) World Organisation for Animal Health (OIE) [Office International Des Epizooties List A] Diseases--Animal [These are] diseases which have the potential for very serious and rapid spread, irrespective of national borders, which are of serious socioeconomic [socio-economic] or public health consequence and [which are] of major importance in the international trade of animals and animal products.

(2) Foreign Animal Diseases--Animal [These are animal] diseases recognized by the United States Department of Agriculture as not being found in the United States.

(3) Reportable Animal Diseases--Also termed notifiable diseases and conditions by the United States Department of Agriculture, diseases that consist of emergency incidents, emergency disease incidents, and regulated disease incidents.

(4) [(3)] National Program Diseases--Animal [These are animal] diseases that are the subject of a federal and state [national state/federal] cooperative eradication program between the State [state] of Texas and the United States Department of Agriculture.

(5) [(4)] Texas Animal Health Commission Designated Diseases and Agents of Disease Transmission--Animal diseases and agents of disease transmission that the commission [Commission] has determined must be reported so [in order that] the commission [Commission] may act as necessary to eradicate or control the [significant ] animal disease or agent of disease transmission [diseases].

§45.2.Duty to Report.

(a) A veterinarian, a veterinary diagnostic laboratory, or a person having care, custody, or control of an animal[,] shall report the existence of the following diseases and agents of disease transmission among livestock, exotic livestock, domestic fowl, or exotic fowl to the commission within 24 hours after diagnosis, unless otherwise required, if the disease or agent of disease transmission is: [The following listing includes diseases and conditions that are Office International Des Epizooties Diseases, Foreign Animal Diseases, National Program Diseases or Texas Animal Health Commission Designated Diseases.]

(1) recognized by the United States Department of Agriculture as a foreign animal disease or a reportable animal disease;

(2) the subject of a cooperative eradication program with the United States Department of Agriculture;

(3) reportable to the World Organisation for Animal Health (OIE);

(4) the subject of a state emergency, as declared by the Governor; or

(5) a disease or agent of disease transmission designated by the Texas Animal Health Commission in §45.3(c) of this chapter.

[Figure: 4 TAC §45.2(a)]

(b) In addition to reporting the existence of a disease under subsection (a) of this section, the veterinarian shall also report to the commission information, to the extent applicable, relating to:

(1) the species and number of animals affected and exposed on the premises [involved];

(2) any clinical diagnosis or postmortem findings;

(3) any death losses;

(4) location of animals; and

(5) animal(s) owner's and caretaker's name, address, and telephone number; and [owner.]

(6) name and telephone number of the veterinarian or other person in attendance.

§45.3.Reportable and Actionable Disease List.

(a) The commission shall protect all livestock, exotic livestock, domestic fowl, and exotic fowl from the following diseases and agents of disease transmission:

(1) Anthrax;

(2) Avian infectious laryngotracheitis;

(3) Avian influenza;

(4) Babesiosis;

(5) Brucellosis;

(6) Chronic wasting disease;

(7) Classical swine fever;

(8) Equine herpesvirus myeloencephalopathy (EHV1-EHM);

(9) Equine infectious anemia;

(10) Equine piroplasmosis;

(11) Foot-and-mouth disease;

(12) Fowl typhoid;

(13) Glanders;

(14) Hemorrhagic septicemia;

(15) Pullorum disease;

(16) Rabies;

(17) Scabies;

(18) Scrapie;

(19) Swine pseudorabies;

(20) Trichomoniasis;

(21) Tuberculosis; and

(22) Foreign or emerging diseases the Executive Director of the Texas Animal Health Commission determines by order requires control or eradication.

(b) The commission may act to eradicate or control any disease or agent of disease transmission that affects livestock, exotic livestock, domestic fowl, or exotic fowl if the disease or agent of disease transmission is:

(1) recognized by the United States Department of Agriculture as a foreign animal disease or a reportable animal disease;

(2) the subject of a cooperative eradication program with the United States Department of Agriculture;

(3) reportable to the World Organisation for Animal Health (OIE);

(4) the subject of a state emergency, as declared by the Governor;

(5) any individual case report, outbreak, emerging disease, or unusual group expression of disease or agent of disease transmission, which affects livestock, exotic livestock, domestic fowl, or exotic fowl other than bluetongue; or

(6) a disease or agent of disease transmission designated by the Texas Animal Health Commission in §45.3(c) of this section.

(c) The commission designates the following as reportable and actionable diseases and agents of disease transmission.

(1) Multiple species:

(A) African animal trypanosomiasis;

(B) Akabane disease;

(C) Anthrax;

(D) Asian longhorned tick (Haemaphysalis longicornis);

(E) Aujeszky's disease (pseudorabies);

(F) Bont and tropical bont tick (Ambylomma hebraeum and Amblyomma variegatum);

(G) Fever tick (Rhipicephalus (formerly Boophilus) annulatus and Rhipicephalus microplus);

(H) Foot-and-mouth disease;

(I) Heartwater;

(J) Leishmaniasis;

(K) Rabies;

(L) Rift Valley fever;

(M) Rinderpest;

(N) Schmallenberg virus;

(O) Screwworm; and

(P) Vesicular stomatitis virus;

(2) Cattle:

(A) Bovine babesiosis;

(B) Bovine brucellosis (Brucella abortus);

(C) Bovine spongiform encephalopathy;

(D) Bovine trichomoniasis;

(E) Bovine tuberculosis;

(F) Contagious bovine pleuropneumonia;

(G) East Coast fever (Theileriosis);

(H) Hemorrhagic septicemia;

(I) Lumpy skin disease; and

(J) Scabies;

(3) Cervidae:

(A) Brucellosis (Brucella abortus, Brucella suis (biotype 4));

(B) Chronic wasting disease; and

(C) Tuberculosis;

(4) Sheep and goat:

(A) Caprine and ovine brucellosis (Brucella melitensis, Brucella ovis);

(B) Contagious caprine pleuropneumonia;

(C) Nairobi sheep disease;

(D) Peste des petits ruminants;

(E) Scabies;

(F) Scrapie; and

(G) Sheep pox and goat pox;

(5) Equine:

(A) African horse sickness;

(B) Contagious equine metritis;

(C) Dourine;

(D) Equine encephalomyelitis (Eastern, Western, and Venezuelan);

(E) Equine herpesvirus myeloencephalopathy (EHV1-EHM);

(F) Equine infectious anemia;

(G) Equine piroplasmosis;

(H) Equine viral arteritis;

(I) Glanders;

(J) Hendra virus (equine morbillivirus pneumonia);

(K) Japanese encephalitis; and

(L) Surra (Trypanosoma evansi);

(6) Swine:

(A) African swine fever;

(B) Classical swine fever (hog cholera);

(C) Swine brucellosis (Brucella suis);

(D) Swine pseudorabies;

(E) Swine vesicular disease; and

(F) Vesicular exanthema of swine;

(7) Poultry and avian:

(A) Arboviral encephalitis;

(B) Avian chlamydiosis (ornithosis, psitticosis);

(C) Avian infectious laryngotracheitis;

(D) Avian tuberculosis (Mycobacterium avium);

(E) Duck virus hepatitis;

(F) Fowl typhoid;

(G) Highly pathogenic avian influenza (fowl plague, orthomyxovirus (type H5 or H7));

(H) Low pathogenic avian influenza;

(I) Newcastle disease (paramyxovirus serotype 1 (PMV-1));

(J) Paramyxovirus infections (other than Newcastle disease; PMV-2 to PMV-9); and

(K) Pullorum disease;

(8) Rabbit:

(A) Myxomatosis; and

(B) Rabbit hemorrhagic disease.

(d) The Executive Director of the Texas Animal Health Commission is authorized to determine the necessary requirements related to quarantine, disposal, testing, movement, inspection, and treatment of diseases or agents of disease transmission in this chapter.

§45.4.Enforcement and Penalties.

(a) A person who violates a rule or order under this chapter is subject to administrative penalties, criminal penalties, sanctions, and civil remedies as authorized by Chapter 161, Texas Agriculture Code.

(b) An administrative penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102876

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 719-0724


CHAPTER 46. EXPORT-IMPORT FACILITIES

4 TAC §§46.1 - 46.6

The Texas Animal Health Commission proposes a new Chapter 46 in Title 4 of the Texas Administrative Code, titled "Export-Import Facilities" comprised of §46.1, concerning Definitions, §46.2, concerning Duty to Report, §46.3, concerning Recordkeeping Requirements, §46.4, concerning Movement Restrictions, §46.5, concerning Right of Entry and §46.6, concerning Enforcement and Penalties.

BACKGROUND AND SUMMARY OF PROPOSED CHAPTER

The 87th Texas Legislature enacted House Bill 1958 relating to the regulation of livestock export-import processing facilities. House Bill 1958 created Section 161.0445 of the Texas Agriculture Code, which requires an owner or person in charge of an export-import facility to notify the Texas Animal Health Commission (commission) not later than 24 hours after an animal received or held at the export-import facility is refused export out of this state or entry into another country. Sections 161.0445(c) and 161.0445(d) authorize the commission to require reporting and recordkeeping requirements and provisions governing the movement, inspection, testing, or treatment of animals.

SECTION-BY-SECTION DISCUSSION

§46.1. Definitions

The definition for "animal" is proposed from Section 161.001 of the Texas Agriculture Code to promote understanding and compliance with the reporting requirements related to that term. The proposed section adds the definition of "export-import facility" pursuant to Section 161.0445(a) of the Texas Agriculture Code. The definition for "VS Form 1-27" is also proposed to specify the permit required for movement of certain animals.

§46.2. Duty to Report

The proposed section requires the owner or person in charge of the export-import facility to report to the commission certain information concerning an animal refused from international trade to the commission within 24 hours of refusal.

§46.3. Recordkeeping Requirements

The proposed section identifies the required information an export-import facility must record, maintain and provide to the commission if an animal(s) is refused export out of this state or entry into another country. Subsection (a)(7) - (12) and subsection (a)(17) are specific to the instance in which animals are rejected. The remaining record requirements in subsection (a) are commonly required on the Export Veterinary Health Certificate. The proposed subsection (b) requires the owner or person in charge of the export-import facility to report to the commission the information required by that section within 7 days of refusal. Subsection (c) proposes that the owner or person in charge of the export-import facility maintain records required by §46.3 for one year following the refusal date. Subsection (d) proposes the owner or person in charge of the export-import facility make records available to the commission upon request during normal business hours.

§46.4. Movement Restrictions

The proposed section restricts movement of refused animals and animals in their shipment unless a commission representative permits movement on a VS Form 1-27. Subsection (a) specifies refusal for disease or pest concerns while subsection (b) clarifies an animal may be refused for other reasons, and if the animal and its cohort do not meet applicable commission regulations, a permit for movement is required.

§46.5. Right of Entry

The proposed section clarifies the commission's ability to enter a public or private export-import facility to examine records, inspect animals, or perform a duty pursuant to Chapter 161 of the Texas Agriculture Code.

§46.6. Enforcement and Penalties

The proposed section describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Administrative penalties may not exceed $5,000 each day a violation continues or occurs.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each year of the first five years the rules are in effect, there will be a minimal impact to state or local governments as the commission develops procedures. Commission employees will enforce these rules as part of their current job duties and resources.

An estimated 12 incidents at the four public export-import facilities occur within a year according to the Texas Department of Agriculture's (TDA) fiscal note for House Bill 1958. TDA anticipated the cost of feeding and caring for the animals while held at the facility plus additional costs to disinfect the area after the animals leave the facility to be approximately $500 per incident or approximately $6,000 per year. TDA anticipates lost revenue could be covered by existing resources and adjusted fees.

PUBLIC BENEFIT NOTE

Ms. Sines determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be improved disease surveillance and control of high-risk animals at export-import facilities to better protect Texas animal agriculture. In the event a high-risk animal is refused export out of this state or into another country, the Texas Animal Health Commission may respond quickly to mitigate such disease risks.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission determined that the proposed rules would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code §2001.0225 does not apply to the proposed rules because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure and, therefore, is not a major environmental rule.

TAKINGS ASSESSMENT

The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's right to his or her private real property that would otherwise exist in the absence of government action. The proposed chapter relates to the handling of animals, which includes requirements for identification and reporting and may include requirements for movement, inspection, testing, and treatment. Those activities comply with 4 TAC §59.7 and are therefore compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043. As such, the activities under the proposed chapter do not constitute a takings.

ECONOMIC IMPACT STATEMENT

The commission determined that this proposed chapter to the Texas Administrative Code would impact export-import facilities in Texas, which may meet the definition of a small business or microbusiness pursuant to Texas Government Code, Chapter 2006. The proposed chapter adds reporting and recordkeeping requirements and movement restrictions for animals refused from international trade. Texas has nine export-import facilities; four of which are operated by the Texas Department of Agriculture (TDA) and five of which are privately operated. TDA estimates 12 incidents of refused animals each year at the public export-import facilities resulting in total lost revenue of $6,000 for feeding, caring for, and cleaning and disinfecting the facility. The number of incidents per year at private export-import facilities is unknown. The commission considered alternative methods of achieving the purpose of the rule, however, reducing the effect of the proposed requirements pursuant to §2006.002 is not feasible considering the purpose of Section 161.0445 of the Texas Agriculture Code. The purpose of the statute is to allow the commission to more effectively and efficiently mitigate disease exposure and threats from high-risk livestock refused entry in international trade and ensure private and public export-import facilities have consistent reporting requirements.

REGULATORY FLEXIBILITY ANALYSIS

The proposed rules may have an adverse economic impact on small businesses, microbusinesses, or rural communities because of the reporting and recordkeeping requirements and movement restrictions placed on high-risk animals rejected for international trade. As such, the commission considered alternative methods of achieving the purpose of this proposed rule pursuant to Texas Government Code §2006.002(c)(2). First, the commission considered how an export-import facility may report to the commission. An option was reporting to the TAHC Region Director in the region where the export-import facility is located. Instead, the commission will provide a 24-hour hotline for convenience.

The commission also considered the scope of information for which an export-import facility must report. Rather than requiring all new information, an Export Veterinary Health Certificate is already required for live animal international trade, so requiring a copy of those documents as part of the report to the commission is a less burdensome alternative for the export-import facilities. The commission also determined those records must be reported within 7 days, not 24 hours, to reduce the burden on the export-import facility. The commission considered how long an owner or person in charge of an export-import facility shall maintain records, and determined one year from the date of refusal was a sufficient recordkeeping requirement. This timeframe differs from other dealer recordkeeping requirements, such as two years and five years, but is an adequate alternative as the records must be submitted within seven days.

Finally, the commission considered how to address the movement of rejected animals from an export-import facility. The commission determined that the VS Form 1-27, "Permit for Movement of Animals," would offer a streamlined approach to permitting animal movements while also protecting against disease exposure to Texas livestock. The VS Form 1-27 provides greater flexibility for the export-import facility because an animal refused from international trade may be tested or treated at an approved location other than the export-import facility. Holding an animal until tested or treated increases costs to the export-import facility. Additionally, certain USDA employees may issue a VS Form 1-27, so an owner or caretaker of a refused animal and its shipment could move from the export-import facility more quickly if a commission representative is unavailable for any reason.

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). For each year of the first five years the proposed rules would be in effect, the commission determined the following:

1. The proposed rules would not create or eliminate a government program;

2. Implementation of the proposed rules would not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed rules would not require an increase or decrease in fees paid to the commission;

5. The proposed rules would create a new regulation;

6. The proposed rules would not expand existing rules and will not otherwise limit or repeal an existing regulation;

7. The proposed rules would increase the number of individuals subject to the regulation; and

8. The proposed rules would not adversely affect this state's economy.

COST TO REGULATED PERSONS

The commission determined the proposed rules follow the legislative requirement that the commission protect domestic and exotic livestock and fowl from communicable diseases. Specifically, this chapter is necessary to implement House Bill 1958, and therefore, it is unnecessary to amend or repeal any other existing rule pursuant to Texas Government Code, §2001.0045(c)(9).

REQUEST FOR COMMENT

Comments regarding the proposed rules may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax to (512) 719-0719, or by email to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The addition of Chapter 46 to the Texas Administrative Code is proposed pursuant to Chapter 161 of the Texas Agriculture Code.

The Texas Animal Health Commission is vested by statute, §161.041(a), titled "Disease Control", to protect all livestock, exotic livestock, domestic fowl, and exotic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl.

Pursuant to §161.0445, titled "Regulation of Export-Import Processing Facilities", the commission may, for disease or pest control purposes, adopt rules necessary to implement, administer, and enforce this section. The rules may include reporting and recordkeeping requirements and provisions governing the movement, inspection, testing, or treatment of animals.

Pursuant to §161.046, titled "Rules", the commission may adopt rules as necessary for the administration and enforcement of this chapter.

Pursuant to §161.047, titled "Entry Power", a commissioner or veterinarian or inspector employed by the commission may enter public or private property for the exercise of an authority or performance of a duty under Chapter 161.

Pursuant to §161.054, titled "Regulation of Movement of Animals; Exception", as a control measure, the commission by rule may regulate the movement of animals. The commission may restrict the intrastate movement of animals even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. The commission is authorized, through §161.054(b), to prohibit or regulate the movement of animals into a quarantined herd, premises, or area. The Executive Director of the commission is authorized, through §161.054(d), to modify a restriction on animal movement, and may consider economic hardship.

Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.

The proposed rules do not affect other statutes, articles, sections, or codes.

§46.1.Definitions .

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Animal--includes livestock, exotic livestock, domestic fowl, and exotic fowl.

(2) Export-Import Facility--A public or private livestock export-import processing facility that is a land border port in this state with the capacity to receive and hold livestock and livestock products for transportation in international trade. The term includes a department facility authorized by Section 146.021 of the Texas Agriculture Code.

(3) VS Form 1-27--A permit for the movement of restricted animals.

§46.2.Duty to Report.

An owner or person in charge of an export-import facility shall report to the commission not later than 24 hours after an animal at an export-import facility is refused export out of this state or entry into another country the following information:

(1) names and addresses of the consignor, consignee, farm of origin, and importer;

(2) species of the animal;

(3) breed;

(4) official animal identification;

(5) sex;

(6) age in months;

(7) export-import facility where the refused animal is located;

(8) reason for refusal;

(9) number of animals in the shipment to which the refused animal belongs;

(10) date refused animal arrived at the export-import facility;

(11) date of refusal; and

(12) name, address, and telephone number of person notified regarding the refused animal.

§46.3.Recordkeeping Requirements.

(a) The owner or person in charge of an export-import facility shall record and maintain the following information for each animal refused export out of this state or entry into another country:

(1) names and addresses of the consignor, consignee, farm of origin, and importer;

(2) species of the animal;

(3) breed;

(4) official animal identification;

(5) sex;

(6) age in months;

(7) export-import facility where the refused animal is located;

(8) destination of the animal after refusal;

(9) reason for refusal;

(10) number of animals in the shipment to which the refused animal belongs;

(11) date refused animal arrived at the export-import facility;

(12) date of refusal;

(13) seal(s) number;

(14) date seal(s) was applied;

(15) truck license number;

(16) trailer license number;

(17) name, address, and telephone number of person notified regarding the refused animal; and

(18) a copy of the health certificate required for international export.

(b) An owner or person in charge of an export-import facility shall submit to the commission a copy of the Export Veterinary Health Certificate or equivalent document required for international export and the information required by this section not later than 7 days after an animal at the export-import facility is refused export out of this state or entry into another country.

(c) The owner or person in charge of an export-import facility shall maintain records required by this section for one year from the date of refusal.

(d) The owner or person in charge of an export-import facility shall provide the records listed in this section to commission personnel for inspection upon request during normal business hours.

§46.4.Movement Restrictions.

The owner or caretaker of an animal refused export out of this state or entry into another country shall not move the animal or animals in its shipment from the export-import facility if the animal is refused for a disease or pest concern or does not meet the commission's applicable testing, entry, inspection, permit, identification, movement, or change of ownership requirements unless permitted for movement on a VS Form 1-27 by a commission representative,

§46.5.Right of Entry.

In addition to the enforcement authority authorized by Chapter 161 of the Texas Agriculture Code, a commission employee may enter an export-import facility during normal business hours to examine records, inspect animals, or perform a duty under Chapter 161 or this chapter.

§46.6.Enforcement and Penalties.

(a) A person who violates a rule or order under this chapter is subject to administrative penalties, criminal penalties, sanctions, and civil remedies as authorized by Chapter 161, Texas Agriculture Code.

(b) An administrative penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102875

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 719-0724


CHAPTER 53. MARKET REGULATION

4 TAC §§53.1, 53.3 - 53.6

The Texas Animal Health Commission (commission) proposes amendments to Title 4, Texas Administrative Code, Chapter 53, titled "Market Regulation". Specifically, amendments are proposed to §53.1, concerning Facilities, §53.3, concerning Quarantine, §53.4, concerning Market Identification and §53.5, concerning Market Recordkeeping. The commission proposes the addition of §53.6, concerning Enforcement and Penalties. Grammatical and editorial changes are proposed for improved readability throughout §§53.1, 53.3 and 53.4.

SECTION-BY-SECTION DISCUSSION

§53.1. Facilities

The proposed rule amends §53.1, "Facilities", by removing the requirement in subsection (d) to provide adequate laboratory space, if needed, to house brucellosis testing equipment as that brucellosis program requirement no longer exists. Instead, markets are required to provide laboratory space, if needed, to process necessary diagnostic tests. The proposed change from "sink with drain" to "water piped to a properly drained sink" aligns with 9 CFR §71.20. Subsection (e) clarifies the veterinarian must be authorized to perform required disease control or eradication program work. The authorization requirement applies to all applicable disease control or eradication programs, including the brucellosis program.

§53.3. Quarantine

The proposed rule amends §53.3, "Quarantine", by removing brucellosis from subsection (a) because brucellosis is covered by "any infectious, contagious, or communicable disease" and it is no longer necessary to emphasize in this section. Subsection (b) consists of grammatical and editorial changes for consistency and improved readability. In subsection (c), the rule proposes changing "employee" to "representative" because a person authorized by the commission could permit animal movement as described in subsection (a), such as certain USDA employees.

§53.4. Market Identification

The proposed rule amends §53.4, "Market Identification", by removing the cross-reference in subsection (a) because that reference applies to a brucellosis program requirement that no longer exists. Some markets test voluntarily, and identification is then required if the market elects to test. As such, the proposed addition retains the market's responsibility to supply cattle eartag and backtag identification to the veterinarian prior to relevant testing.

§53.5. Market Recordkeeping

The proposed rule amends §53.5, "Market Recordkeeping", by clarifying which records a market must maintain that are common to all species, which aligns with existing commission rules as well as federal regulations. As such, the recordkeeping requirements are reorganized to improve compliance and readability, and no existing content is removed. Specifically, in subsection (a), those recordkeeping requirements are required of dealers throughout commission rules, and Section 161.049 of the Texas Agriculture Code specifies that the term "dealer" includes livestock markets and commission merchants. In subsections (b) and (c), the time in which to maintain records is reorganized for improved readability and clarification. Additionally, the recordkeeping requirement to maintain records for those consigned cattle for five years, not two years, in subsection (b) is amended to be consistent with to 4 TAC §43.2(h). The proposed addition that records must be made available for inspection during normal business hours in subsections (b) and (c) also aligns with 4 TAC §43.2(h).

§53.6. Enforcement and Penalties

The proposed section describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Subsection (b) provides that administrative penalties may not exceed $5,000 each day a violation continues or occurs.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each year of the first five years the rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. Commission employees currently allocated to the administration and enforcement of market activities will continue to administer and enforce these rules as part of their regular job duties and resources. Ms. Sines also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules, and the proposed rules do not have foreseeable implications relating to costs or revenues of state governments.

PUBLIC BENEFIT NOTE

Ms. Sines determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be continued disease surveillance, control, enhanced marketability, and quality assurance. The proposed rules also improve readability and compliance by clarifying and removing inconsistencies in existing regulations.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission determined that the proposed rules would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code §2001.0225 does not apply to the proposed rules because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure and, therefore, is not a major environmental rule.

TAKINGS ASSESSMENT

The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's right to his or her private real property that would otherwise exist in the absence of government action. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a takings.

ECONOMIC IMPACT STATEMENT

The commission determined that the proposed amendments to Chapter 53 of the Texas Administrative Code would not impact a small business, microbusiness, or rural community pursuant to Texas Government Code, Chapter 2006, because the proposed rules only clarify existing regulations. No new regulations are proposed.

REGULATORY FLEXIBILITY ANALYSIS

The proposed rules of this chapter do not have an adverse economic impact on small businesses, microbusinesses, or rural communities because the proposed amendments and additions clarify what is currently required by the Texas Animal Health Commission rules. As such, the commission did not consider alternative methods of achieving the purpose of this proposed rule pursuant to Texas Government Code §2006.002(c)(2).

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). For each year of the first five years the proposed rules would be in effect, the commission determined the following:

1. The proposed rules would not create or eliminate a government program;

2. Implementation of the proposed rules would not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed rules would not require an increase or decrease in fees paid to the commission;

5. The proposed rules would not create a new regulation because the commission is not proposing the regulation of any new entity;

6. The proposed rules would not expand existing rules and will not otherwise limit or repeal an existing regulation;

7. The proposed rules would not increase the number of individuals subject to the regulation; and

8. The proposed rules would not adversely affect this state's economy.

COST TO REGULATED PERSONS

The commission determined the proposed rules follow the legislative requirement that the commission protect domestic and exotic livestock and fowl from communicable diseases. The proposed rules do not impose a direct cost on a regulated person, state agency, a special district, or a local government within the state. Therefore, it is unnecessary to amend or repeal any other existing rule.

REQUEST FOR COMMENT

Comments regarding the proposed rules may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax to (512) 719-0719, or by email to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The amendments to §§53.1, 53.3, 53.4 and 53.5 and the addition of §53.6 are proposed pursuant to the following statutory authority as found in Chapter 161 of the Texas Agriculture Code.

The Texas Animal Health Commission is vested by statute, §161.041(a), titled "Disease Control", to protect all livestock, exotic livestock, domestic fowl, and exotic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl.

Pursuant to §161.0415, titled "Disposal of Diseased or Exposed Livestock or Fowl", the commission may require by order the slaughter of livestock, domestic fowl, or exotic fowl exposed to or infected with certain diseases.

Pursuant to §161.0417, titled "Authorized Personnel for Disease Control", the commission must authorize a person, including a veterinarian, to engage in an activity that is part of a state or federal disease control or eradication program for animals.

Pursuant to §161.046, titled "Rules", the commission may adopt rules as necessary for the administration and enforcement of this chapter.

Pursuant to §161.049, titled "Dealer Records", a commission may require a livestock, exotic livestock, domestic fowl, or exotic fowl dealer to maintain records of all livestock, exotic livestock, domestic fowl, or exotic fowl bought and sold by the dealer. The commission may inspect and copy the records of a livestock, exotic livestock, domestic fowl, or exotic fowl dealer that relate to the buying and selling of those animals. The commission by rule shall adopt the form and content of the records maintained by a dealer. A dealer is a person engaged in the business of buying or selling animals in commerce on the person's own account; as an employee or agent of the vendor, the purchaser, or both; or on a commission basis. That does not include a person who buys or sells animals as part of the person's bona fide breeding, feeding, dairy, or stocker operations but does include livestock markets and commission merchants.

Pursuant to §161.054, titled "Regulation of Movement of Animals; Exception", the commission, by rule, may regulate the movement of animals. The commission may restrict the intrastate movement of animals even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. The commission is authorized, through §161.054(b), to prohibit or regulate the movement of animals into a quarantined herd, premises, or area. The Executive Director of the commission is authorized, through §161.054(d), to modify a restriction on animal movement, and may consider economic hardship.

Pursuant to §161.056(a), titled "Animal Identification Program", the commission, to provide for disease control and enhance the ability to trace disease-infected animals or animals that have been exposed to disease, may develop and implement an animal identification program that is no more stringent than a federal animal disease traceability or other federal animal identification program.

Pursuant to §161.113, titled "Testing or Treatment of Livestock", the commission may establish rules regarding the tests, vaccination, and treatment of animals at livestock markets. Section 161.113(c) provides that the commission may require the owner or operator of the livestock market to furnish adequate chutes or holding pens or have access to other essential testing and dipping facilities within the immediate vicinity of the livestock market. Pursuant to Senate Bill 705, effective September 1, 2021, the commission may require the owner or operator of the livestock market to furnish adequate equipment or facilities or have access to essential equipment or facilities within the immediate vicinity of the livestock market.

Pursuant to §161.114, titled "Inspection of Livestock", an authorized inspector of the TAHC may examine livestock consigned to and delivered on the premises of a livestock market before the livestock are offered for sale. The inspector may require an animal be tested or vaccinated if necessary, which must occur before the animal is removed from the livestock market.

Pursuant to §161.115, titled "Entry Power", an agent of the commission is entitled to enter any livestock market to exercise authority or performance of a duty under Subchapter G of Chapter 161.

Pursuant to §161.116(b), titled "Sale or Delivery of Diseased Cattle", a person may not sell diseased cattle, which includes carcinoma, unless the cattle are sold through a livestock market where visual examination of livestock is made by an agent of the commission or by the USDA. Under §161.116(c), a person may not release diseased cattle from a livestock market unless the cattle are consigned directly to a federally approved terminal market or to a slaughtering establishment maintaining federal, state, or state-approved veterinary postmortem inspection; and accompanied by a certificate or permit issued by a TAHC or USDA representative naming the terminal market or slaughtering establishment.

Pursuant to §161.146, titled "Compliance with Livestock Market Regulation", an owner or operator of a livestock market must furnish adequate facilities, permit an agent of the commission to enter the market, exercise an authority, or perform a duty under Subchapter G of Chapter 161, Texas Agriculture Code.

Pursuant to §161.147, titled "Failure to Maintain Dealer Records", a person commits an offense if the person fails to maintain or permit the inspection of a record required under Section 161.049 of Chapter 161.

Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.

The proposed rules do not affect other statutes, sections or codes.

§53.1.Facilities.

(a) Each livestock market shall furnish at least one cattle chute suitable for animal restraint for inspection, testing, tagging, vaccination, and other treatments [treatment] and procedures that may be required.

(b) When swine that are known to be affected by or exposed to any infectious, contagious, or communicable disease or condition are sold, facilities, including the sales area, scales, and alleyways, must be cleaned and disinfected prior to movement of any swine of unknown status through the area.

(c) Each livestock market must provide a workspace [work space] for Texas Animal Health Commission (TAHC) representatives.

(d) If laboratory facilities are not available near a market, the market must provide laboratory space of sufficient size to adequately process any diagnostic tests required by the TAHC or USDA [house brucellosis testing equipment]. The space must be adequately lighted, heated, [and] air conditioned, and have [must be equipped with] a refrigerator, water piped to a properly drained sink [with drain], and hot and cold running water. The space must be maintained in a sanitary condition.

(e) Each livestock market must arrange for the services of an authorized [a] veterinarian approved by the TAHC and accredited by the USDA to perform any TAHC or USDA disease control or eradication program [brucellosis] work.

§53.3.Quarantine.

(a) Livestock showing evidence of, infection with, or exposure to [brucellosis or] any [other] infectious, contagious, or communicable disease, feral swine, and livestock that have moved to the market on permits other than cattle permitted to market for vaccination, shall be placed in quarantine pens clearly marked with the designation "QUARANTINE PENS" in letters at least three inches high. All livestock confined in quarantine pens shall be moved only on a permit issued by a Texas Animal Health Commission (commission) [(TAHC)] representative.

(b) The commission may quarantine a livestock market or portion thereof after [After] the occurrence of, infection with, or exposure to a disease or condition that is infectious or contagious[, TAHC may quarantine a livestock market or portion thereof]. The commission [TAHC] may prescribe the conditions under which the quarantine will be released, including any cleaning and disinfection procedures.

(c) A livestock market shall [is] not [to] permit the removal of any animal quarantined or under hold order until a permit for movement is issued by a commission representative [TAHC employee] or until a commission [TAHC] employee releases the quarantine or hold order.

§53.4.Market Identification.

(a) The market shall identify each head of cattle tested at the market with an official United States Department of Agriculture, Animal and Plant Health Inspection Service, Veterinary Services (USDA APHIS VS) approved eartag and backtag. The market shall supply this information to the accredited veterinarian prior to any testing required by a TAHC or USDA disease control or eradication program [as provided in §35.2(e)(3) of this title (relating to General Requirements)].

(b) The market shall identify each sow and boar over six months of age consigned to the market with an official USDA APHIS VS [United States Department of Agriculture, Animal and Plant Health Inspection Service, Veterinary Services] approved identification backtag. The market shall record the backtag numbers for each consignment.

§53.5.Market Recordkeeping.

(a) A market must maintain the following records for all species:

(1) Buyer's and seller's name and address;

(2) County of origin;

(3) Number of animals;

(4) Delivery vehicle license number;

(5) Individual identification, such as eartag, bangle tag, earnotch, backtag, tattoo, firebrand, microchip number; and

(6) A description of each animal including sex, age, color, breed, brand and registration number, if applicable.

[(a) A market must maintain records of all cattle consigned that are parturient or postparturient or 18 months of age or older. The records must show the buyer's and seller's names and addresses, county of origin of the cattle, number of animals, delivery vehicle license number, and a description of each animal including sex, age, color, breed, brand, and individual identification such as eartag, bangle tag, backtag, tattoo, or firebrand. Such records must be maintained for a minimum of two years after the date of the transaction and must be made available for inspection by Texas Animal Health Commission (TAHC) representatives.]

(b) A market must maintain all records for cattle consigned that are parturient or postparturient or 18 months of age or older, sheep and goats, cervids, and equine for at least five years after the date of the transaction. The records must be made available for inspection by a Texas Animal Health Commission (commission) representative during normal business hours.

[(b) A market must maintain records of all swine sold including the buyer's and seller's names and addresses, county or origin of the swine, number of animals, delivery vehicle license number, and a description of each animal, including sex, age, color, breed, and individual identification such as eartag, bangle tag, earnotch, backtag, or slap tattoo. Such records must be maintained for a minimum of two years after the date of the transaction and must be made available for inspection by TAHC representatives.]

(c) A market must maintain all swine and poultry records for at least two years after the date of the transaction. The records must be made available for inspection by a commission representative during normal business hours.

§53.6.Enforcement and Penalties.

(a) A person who violates a rule or order under this chapter is subject to administrative penalties, criminal penalties, sanctions, and civil remedies as authorized by Chapter 161, Texas Agriculture Code.

(b) An administrative penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102874

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 719-0724


CHAPTER 55. SWINE

4 TAC §§55.1 - 55.5, 55.7, 55.9, 55.10

The Texas Animal Health Commission (commission) proposes amendments to Title 4, Texas Administrative Code, Chapter 55, titled "Swine", comprised of §55.1, concerning Testing Breeding Swine Prior to Sale or Change of Ownership, §55.2, concerning Prohibition on the Use of Modified Live Virus Hog Cholera Vaccine, §55.3, concerning Feeding of Garbage, §55.4, Livestock Markets Handling Swine, §55.5, concerning Pseudorabies, §55.7, concerning Slaughter Plant Requirements and §55.9, concerning Feral Swine. The commission also proposes the addition of §55.10, concerning Enforcement and Penalties, to clarify what penalties apply to Chapter 55 of the Texas Administrative Code. In all amended sections, non-substantive grammatical and editorial changes are also proposed for improved readability.

SECTION-BY-SECTION DISCUSSION

§55.1. Testing Breeding Swine Prior to Sale or Change of Ownership

In subsections (a)(1) and (a)(4), "parturient" and "postparturient" are added to cover any swine that have given birth or are about to give birth and are less than six months of age. In subsection (a)(4), definitions for sow and boar are proposed for clarification pursuant to 9 CFR §78.1. In subsection (a)(6), the proposed definition updates terminology in accordance with the USDA's National Pseudorabies Surveillance Plan, though the existing term "transitional production swine" is referenced to prevent confusion. Subsection (a)(8) deletes the "infected herd" definition to instead add that definition to §55.5 as it is specific to pseudorabies. The definition for "pseudorabies" is proposed to align with 9 CFR §85.1 for improved understanding. Subsection (a)(10) proposes the addition of "TAHC Authorized Veterinarian" to clarify the type of veterinarian eligible to perform certain disease control work.

Subsection (b)(2) is rephrased, to update the category of veterinarian who may collect and test serology samples. In subsection (b)(4), the proposal clarifies that the movement restriction on breeding swine pending test results are dependent on the hold order, not on the test results. Subsection (b)(5) also clarifies that the USDA-approved eartag identification must be official, which the existing rule follows by conforming to the alphanumeric National Uniform Eartagging System.

§55.2. Prohibition on the Use of Modified Live Virus Hog Cholera Vaccine

An amended title to this section, "Restricted Use of Modified Live Virus Classical Swine Fever Vaccine", is proposed to update the disease name and vaccination restriction. The proposal aligns with Senate Bill 1997 enacted by the 87th Texas Legislature that changed hog cholera to classical swine fever in Chapter 165 of the Texas Agriculture Code. The section proposes that only certain persons may access the live virus classical swine fever vaccine.

§55.3. Feeding of Garbage

An amended title to this section, "Feeding of Garbage Requirements and Garbage Feeding Facility Permit", is proposed to better describe the content of the section. Subsection (b) proposes the addition of the existing subsection (j) because that exception better fits with the subsection (b) statement regarding who may and may not feed restricted garbage to swine. Subsection (d)(2)(D) is proposed to clarify the source information that is referenced in subsection (d)(2)(C), and (d)(2)(C) is amended to remove the source reference. The addition of subsection (d)(3)(D) is proposed from the existing subsection (i)(2) to improve understanding regarding the commission's authority to revoke or deny the renewal of a permit.

Subsection (g) proposes that permit holders shall provide the daily log records during normal business hours of that facility and maintain those records for one year, which aligns with 9 CFR §166.9. The amendment to subsection (h) adds a carcass disposal citation because a registered facility must also follow applicable state law, not merely local ordinance. As such, the commission proposes this reference to provide more notice about other applicable laws. Subsections (i) and (j) are amended and removed in part to create one enforcement section in §55.10; no substantive content is deleted. In subsection (i), editorial changes are proposed to retain the falsification of an application violation provision for clarity.

§55.4. Livestock Markets Handling Swine

Subsection (a) is proposed to amend the statement concerning nylon mesh is proposed for deletion because it is outdated. Subsection (b) is proposed for deletion because test-eligible swine is defined in §55.1. In subsection (c), the 120 days requirement for a market to bring the facility into compliance is proposed for deletion because that is now outdated; more than 120 days have passed since the date of the rule's adoption. Subsection (f)(2) updates the reference to the Code of Federal Regulations relating to the approval of livestock facilities and conform to 9 CFR §71.20 specifically relating to requirements for facilities handling swine.

In subsection (g), hog cholera is amended to classical swine fever pursuant to Chapter 165 of the Texas Agriculture Code as amended by the 87th Texas Legislature. Classical swine fever is the more common and updated name of the disease. The amendment in the same section is proposed to clarify that swine movement must be permitted as opposed to authorized. Subsection (i)(4) clarifies that the swine must be officially identified, and subsection (i)(5) clarifies how long the market shall maintain the backtag information pursuant to 4 TAC §53.5. Specifically, the proposed addition aligns with 4 TAC §53.5(b) requiring markets, who are dealers, to maintain records for swine for two years from the date of transaction. In subsection (i)(6), an alternative applicable TAHC form is added to update the rule; either the TAHC Form 91-26 or the VS Form 4-54S may be used for the swine test chart.

§55.5. Pseudorabies

Subsection (a)(1)(A) - (C) proposes non-substantive amendments to align with the language of the Pseudorabies Eradication State-Federal-Industry Program Standards for consistency. Subsection (a)(3) amends the term transitional production swine to high-risk domestic swine to align with the National Pseudorabies Surveillance Plan and the proposed definition in §55.1. Subsection (a)(5) proposes "feeder facility" instead of "feedlot" to more specifically describe the premises and for consistency with the proposed definition of "quarantined finisher facility." Subsection (a)(7) adds the definition for "Executive Director" as that term is used throughout the section.

In subsection (a)(8), swine must have resided on a farm for at least 90 days rather than 60 days immediately prior to movement. The proposal aligns with 9 CFR §85.1 as well as the existing "farm of origin" definition in §55.1(7) of this chapter. As such, the amendment is proposed to reduce confusion and promote consistency with the federal regulation and existing definition. "Infected herd" is proposed as subsection (a)(9) for clarification and thereby replaces the subsection definition in §55.1.

Amendments to subsections (a)(10-11) are proposed for clarity, and subsection (a)(11)(F) is proposed for consistency with 9 CFR §85.1 as an official pseudorabies test. In subsection (a)(12), the "transitional production swine" definition is proposed to become "high-risk domestic swine" based on updated language from the National Pseudorabies Surveillance Plan. As a result of that proposed updated term, subsection (b) is updated.

In subsection (b), the term "intentionally" is proposed for removal to clarify that commingling shall not occur between feral swine and commercial swine whether intentional or not. Subsection (d) proposes amending the epidemiologist who may investigate suspect herds and clarify that a diagnosis must be made using a USDA-approved official test in an approved laboratory pursuant to 9 CFR §85.1.

In subsection (e)(1), an "approved reactor tag" is proposed instead of a red serially numbered reactor tag to provide the commission with greater flexibility to determine which reactor tags are approved for infected swine. Subsection (e)(3) is proposed to clarify and align with 9 CFR §85.1, the Pseudorabies Eradication State-Federal-Industry Program Standards, and current commission practice. Subsection (f) proposes amending terms to be consistent with 9 CFR §85.1 and terms defined in this chapter. In subsection (f)(5), the proposed amendment allows other forms of identification providing an alternative to the 1/2-inch hole punch requirement.

Subsection (g) clarifies how to attain and maintain qualified pseudorabies negative herd status by conforming to 9 CFR §85.1. In subsection (g)(1), the requirement that part of the herd must have been on the premises for at least 90 days rather than 60 days corrects an error and follows 9 CFR §85.1 for attaining qualified pseudorabies negative herd status. Subsection (g)(2) clarifies how often and which swine must be tested to maintain that negative herd status pursuant to 9 CFR §85.1. Subsection (g)(3) is reorganized to improve readability by distinguishing herd status suspension from herd additions, which is the proposed subsection (g)(4). In subsection (i), proposed terms update the specific type of facility at issue for clarification.

§55.7. Slaughter Plant Requirements

In subsections (a) and (a)(4), "slaughter" is proposed to replace "kill" as the more commonly used term. In subsections (a)(1) and (a)(5), the recordkeeping requirements are added for clarity and pursuant to §148.011 of the Texas Agriculture Code. Additionally, the title of the VS Form 4-54S is amended for accuracy, and the alternate form, TAHC Form 91-26 is proposed as an update for where swine samples and identification may be recorded. In subsections (a)(3) - (4) and (b)(2), the laboratory term is updated in response to Senate Bill 705 enacted by the 87th Texas Legislature, which closed the commission's state-federal laboratory and designated the Texas A&M Veterinary Medical Diagnostic Laboratory as Texas' regulatory animal health laboratory in Section 161.0603 of the Texas Agriculture Code, effective September 1, 2021.

§55.9. Feral Swine

The proposed title of this section is "Feral Swine Requirements, Facility Approval and Authorization" to more accurately describe the content of the section. As such, the proposed title may allow regulated persons to more easily find the requirements for holding facility and hunting preserve authorization. In subsections (a), (c) and (d), the requirement for swine-proof fences to prevent both ingress and egress is clarified.

In subsection (a), "Sus scrofa" is proposed for deletion because that binomial nomenclature refers to all swine, not exclusively domestic swine. Subsection (b)(7) is amended to clarify the premises where feral swine were prior to movement to an authorized location.

In subsection (c)(2)(E), the word "intentionally" is proposed for deletion because feral swine shall not be commingled with any domestic or exotic swine for any reason, whether intentionally or not. Subsection (c)(2)(G) replaces "dead animals" with "animal carcasses" to reflect more precise terminology. References to other carcass disposal requirements are proposed to provide notice of state law that a registered facility must also follow. Subsection (c)(2)(H) amends the term from "approved slaughter facility" to "recognized slaughter facility" to match the term as defined in this section.

Subsection (d)(2)(B) clarifies some available types of individual identification required for any feral swine released that are approved by the commission. In subsection (d)(2)(G), citations and terminology are clarified for improved understanding. Subsection (d)(3)(C) is proposed because the statement existing in subsection (h)(2) better fits in this authorized hunting preserve section concerning permit authorization. As such, no substantive addition is proposed, and the next subsection is renumbered accordingly.

Subsection (g) adds specific citations for clarification regarding commission inspection authority. Amendments that remove portions of subsection (h) are proposed to create one enforcement section in §55.10; no substantive content is deleted. In the same section, editorial changes are proposed to retain the falsification of an application violation provision for clarity.

§55.10. Enforcement and Penalties

The proposed section describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Subsection (b) provides that administrative penalties may not exceed $5,000 each day a violation continues or occurs.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each of the first five years the rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. Current commission employees will administer and enforce these rules as part of their regular job duties and resources. Ms. Sines also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering these proposed rules, and the proposed rules do not have foreseeable implications relating to costs or revenues of state governments.

PUBLIC BENEFIT NOTE

Ms. Sines determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be the improved readability and clarification of existing swine regulations, as well as conformance with federal rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission determined that the proposed rules would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code §2001.0225 does not apply to the proposed rules because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure and, therefore, is not a major environmental rule.

TAKINGS ASSESSMENT

The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. Instead, the proposed rules relate to the handling of animals, including requirements concerning testing, movement, inspection, identification, reporting of disease, and treatment pursuant to 4 TAC §59.7. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a takings.

ECONOMIC IMPACT STATEMENT

The commission determined that the proposed amendment to §55.5(g) may impact animal agricultural industries, which meet the definition of a small business or microbusiness pursuant to Chapter 2006 of the Texas Government Code. The proposed amendment increases the number of days in which part of a swine herd must have been on the premises prior to an official pseudorabies serologic test from 60 to 90 days to attain qualified pseudorabies negative herd status, which conforms to 9 CFR §85.1. The proposal may be a cost to herd owners or caretakers seeking qualified pseudorabies negative herd status because herds must continue to reside on the premises for an additional 30 days. At the time of publication, there are 13 qualified pseudorabies negative herds in the State of Texas. The herd program is a voluntary federal program that allows herds to move interstate without testing for pseudorabies prior to each movement. To comply with the federal program, the herds must already meet the 90 day requirement so the proposal would not introduce a new cost. No other proposed amendments impose a cost on small businesses, microbusinesses, or rural communities.

REGULATORY FLEXIBILITY ANALYSIS

The proposed amendment to §55.5(g) may have an adverse economic impact on small businesses, microbusinesses, or rural communities. As such, the commission considered alternative methods of achieving the purpose of this proposed rule pursuant to Texas Government Code §2006.002(c)(2). The commission determined that conforming to 9 CFR §85.1 is the most appropriate option to update the qualified pseudorabies negative herd status requirement that part of the herd must have been on the premises for at least 90 days prior to the qualifying pseudorabies serologic test. The commission considered not changing the length of time from 60 days. Based on other disease programs like brucellosis, however, the commission concluded that 90 days reduces confusion and follows the federal regulation governing the program. Further, herd owners still have the flexibility in the existing rule to attain qualified pseudorabies herd status by entering animals directly from another qualified pseudorabies herd.

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). For each year of the first five years the proposed rules would be in effect, the commission determined the following:

1. The proposed rules would not create or eliminate a government program;

2. Implementation of the proposed rules would not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed rules would not require an increase or decrease in fees paid to the commission;

5. The proposed rules would not create a new regulation because the commission is not proposing the regulation of any new entity;

6. The proposed rules would not expand existing rules and will not otherwise limit or repeal an existing regulation;

7. The proposed rules would not increase the number of individuals subject to the regulation; and

8. The proposed rules would not adversely affect this state's economy.

COST TO REGULATED PERSONS

The commission determined the proposed amendment to §55.5(g) follows the legislative requirement that the commission protect domestic and exotic livestock and fowl from certain diseases. The proposed amendment to §55.5(g) may impose a direct cost on a regulated person who voluntarily seeks to attain qualified pseudorabies negative herd status. The amendment is proposed to meet the federal requirement found in 9 CFR §85.1. The proposed rules do not otherwise impose a direct cost on a state agency, a special district, or a local government within the state. Therefore, it is unnecessary to amend or repeal any other existing rule pursuant to §2001.0045, Texas Government Code.

REQUEST FOR COMMENT

Comments regarding the proposed amendments may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax to (512) 719-0721, or by email to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The amendments to §§55.1 - 55.5, 55.7, 55.9 and 55.10, are proposed pursuant to the following statutory authority found in Chapters 161 and 165 of the Texas Agriculture Code. The addition of §55.10 is proposed pursuant to Chapter 161 of the Texas Agriculture Code.

The Texas Animal Health Commission is vested by statute, §161.041(a), titled "Disease Control", to protect all livestock, exotic livestock, domestic fowl, and exotic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl.

Pursuant to §161.0412, titled "Regulation and Registration of Feral Swine Holding Facilities", the commission may require the registration of feral swine holding facilities for disease control purposes. The commission may also require a person to register with the commission if the person confines feral swine in a holding facility for slaughter, sale, exhibition, hunting, or any other purpose specified by commission rule to prevent the spread of diseases.

Pursuant to §161.0417, titled "Authorized Personnel for Disease Control", a person, including a veterinarian, must be authorized by the commission to engage in an activity that is part of a state or federal disease control or eradication program for animals.

Pursuant to §161.042, titled "Sale and Distribution of Veterinary Biologics", the commission may control the sale and distribution of all veterinary biologics except rabies vaccine.

Pursuant to §161.046, titled "Rules", the commission may adopt rules as necessary for the administration and enforcement of this chapter.

Pursuant to §161.047, titled "Entry Power", the commissioner or a veterinarian or inspector employed by the commission may enter public or private property for the exercise of an authority or performance of a duty under Chapter 161.

Pursuant to §161.048, titled "Inspection of Shipment of Animals or Animal Products", an agent of the commission is entitled to stop and inspect a shipment of animals or animal products being transported in the State of Texas to determine if the shipment is in compliance with the laws and rules administered by the commission affecting the shipment, determine if the shipment originated from a quarantined area or herd, or determine if the shipment presents a danger to the public health or livestock industry through a communicable or noncommunicable disease.

Pursuant to §161.054, titled "Regulation of Movement of Animals; Exception", the commission by rule may regulate the movement of animals, including feral swine, as a control measure. The commission may restrict the intrastate movement of animals, including feral swine, even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. The commission by rule may prohibit or regulate the movement of animals, including feral swine, into a quarantined herd, premise, or area. In connection with the regulation of the movement of feral swine, the commission by rule may require disease testing before movement of feral swine from one location to another, and establish the conditions under which feral swine may be transported.

Pursuant to §161.055, titled "Slaughter Plant Collection", the commission may require slaughter plants to collect and submit blood samples and other diagnostic specimens for testing for disease. The commission by rule shall determine the method of collecting, submitting, and testing of blood samples and other diagnostic specimens.

Pursuant to §161.114, titled "Inspection of Livestock", an authorized inspector may examine livestock consigned to and delivered on the premises of a livestock market before the livestock are offered for sale. If the inspector considers it necessary, the inspector may have an animal tested or vaccinated. Any testing or vaccination must occur before the animal is removed from the livestock market.

Pursuant to §161.115, titled "Entry Power", an agent of the commission is entitled to enter any livestock market for the exercise of authority or performance of a duty under Subchapter G, Chapter 161.

Pursuant to §161.1375, titled "Movement of Feral Swine", a person commits an offense if the person recklessly moves feral swine in a manner that does not comply with commission rules or as the owner or person in charge of a holding facility in which feral swine is held, permits another to remove feral swine from the holding facility in a manner that does not comply with commission rules.

Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.

Pursuant to §161.150, titled "Failure to Register Feral Swine Holding Facilities; Holding of Feral Swine", a person commits an offense if the person recklessly maintains a feral swine holding facility that is not registered under §161.0412 of the Texas Agriculture Code or as the owner or person in charge of a holding facility that is not registered under §161.0412 holds or permits another to hold feral swine in the holding facility.

Pursuant to §165.022, titled "Method of Disease Eradication", the commission shall adopt rules following notice and public hearing for the enforcement of cooperative programs for disease eradication, including rules providing for the manner, method, and system of eradicating swine diseases. Pursuant to Senate Bill 1997 enacted by the 87th Texas Legislature, effective September 1, 2021, the commission may by a two-thirds vote adopt rules that are more stringent than the federal minimum standards for cooperative programs.

Pursuant to §165.026, titled "Feeding Garbage to Swine", a person may not feed restricted garbage to swine or provide restricted garbage to any person for the purpose of feeding swine, except that a facility operated by the Texas Department of Criminal Justice may feed restricted garbage to swine if the garbage is properly treated in accordance with applicable federal requirements. A person may feed unrestricted garbage to swine only if the person first registers with and secures a permit from the commission. The commission may adopt rules for registration under this section, including rules providing for registration issuance, revocation, and renewal, disease tests, inspections, bookkeeping, and appropriate handling and treatment of unrestricted garbage. Registration with the commission shall be made on forms prescribed by the commission, and the commission shall furnish those forms on request.

Pursuant to §165.027, titled "Entry Power", a representative of the commission, including a member of the commission, is entitled to enter the premises of any person for the purpose of inspecting swine or the heating or cooking equipment required by Subchapter B, Chapter 165, or for the purpose of performing another duty under Subchapter B, Chapter 165. A person may not refuse to permit an inspection authorized by Subchapter B, Chapter 165.

Pursuant to §165.041, titled "General Penalty", a person commits an offense if the person violates a provision of Subchapter B, Chapter 165 or a rule adopted under that subchapter. An offense under this section is a Class C misdemeanor unless it is shown on the trial of the offense that the defendant has been previously convicted under this section, in which event the offense is a Class B misdemeanor. A person commits a separate offense for each day of violation.

The proposed rules in Chapter 55 do not affect other statutes, sections, or codes.

§55.1.Testing Breeding Swine Prior to Sale or Change of Ownership.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Breeding Swine--Swine that are sexually intact, parturient, postparturient, or six months of age or older [and are sexually mature, intact animals].

(2) Change of Ownership--Taking possession of breeding swine as a result of a gift or by some other form of remuneration.

(3) Test or Testing--Collection and examination of blood samples taken from swine by using commission or USDA recognized tests for pseudorabies [Pseudorabies] and swine brucellosis [Swine Brucellosis infection].

(4) Test Eligible--A term used to describe those sexually intact breeding swine, that are parturient, postparturient, or six months of age or older, are required to be tested for pseudorabies [Pseudorabies] and swine brucellosis [Brucellosis]. A sow is a female swine which is parturient or postparturient. A boar is an uncastrated male swine 6 months of age or over which is or has been capable of being used for breeding purposes.

(5) Commercial Production Swine--Those swine are continuously managed and have adequate facilities and practices to prevent exposure to either transitional production swine or feral swine.

(6) High-Risk Domestic [Transitional Production] Swine--Captive swine located in feral swine areas in which management practices allow for possible disease exposure via direct or indirect feral swine contact. High-risk domestic swine are formerly referred to as transitional or transitional production swine [Swine that have a reasonable opportunity to be exposed to feral swine or captive feral swine].

(7) Farm of Origin--A farm where swine were born or on which they have resided for at least 90 consecutive days immediately prior to movement.

[(8) Infected Herd--Any herd in which any swine have been determined to be infected with pseudorabies virus by an official pseudorabies epidemiologist.]

(8) Pseudorabies--The contagious, infectious, and communicable disease of livestock and other animals also known as Aujeszky's disease.

(9) TAHC Authorized Veterinarian--A veterinarian who is licensed to practice medicine in Texas, Category II accredited by USDA-APHIS-VS and has satisfactorily completed TAHC disease control or eradication program training pursuant to 4 TAC Chapter 47.

(b) Testing Prior to Change of Ownership.

(1) All breeding swine shall test [be tested] negative for pseudorabies [Pseudorabies] and swine brucellosis [Brucellosis] within 30 days prior to change of ownership in Texas. Swine from herds with a current disease-free status are exempt from this test requirement.

(2) TAHC or USDA-APHIS-VS regulatory personnel or a TAHC Authorized Veterinarian shall collect and test blood samples using procedures referenced in current national disease program standards [Blood will be collected by TAHC or USDA, VS Regulatory personnel or Texas licensed, USDA Accredited Veterinarians or their employees and tested using tests referenced in current national disease program standards].

(3) Breeding swine [Swine] from which blood was collected at a livestock market may be moved from the market to a recognized slaughter facility without receiving test results. No permit or hold order [Hold Order] is required for movement to a recognized slaughter facility.

(4) Breeding swine [Swine] from which blood was collected at a livestock market may be moved from the market to the buyer's premises [premise of the buyer] under hold order [Hold Order] pending results of the test and should be isolated from other swine until the hold order is released [test results are known].

(5) Each animal tested shall be officially identified by a USDA Veterinary Services approved identification eartag (metal, plastic, or other) that conform to the nine-character alphanumeric [alpha-numeric] National Uniform Eartagging [Ear-tagging] System.

§55.2.Restricted [Prohibition on the] Use of Modified Live Virus Classical Swine Fever [Hog Cholera] Vaccine.

Unless authorized by the Texas Animal Health Commission, the [The] use of modified live virus classical swine fever [hog cholera] vaccine is restricted [prohibited] for any reason by any person within the State of Texas.

§55.3.Feeding of Garbage Requirements and Garbage Feeding Facility Permit.

(a) In addition to the definitions set forth [out] in the Texas Agriculture Code, Chapter 165, [and ] Chapter 55 of this title (relating to Swine), and Chapter 35 Subchapter B[,] of this title (relating to Brucellosis), the following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Restricted garbage--includes the animal refuse matter and the putrescible animal waste resulting from handling, preparing, cooking, or consuming food containing all or part of an animal carcass;[,] the animal waste material by-products or commingled animal and vegetable waste material by-products of a restaurant, kitchen, cookery, or slaughterhouse;[,] and refuse accumulations of animal matter[,] or commingled animal and vegetable matter, liquid or otherwise.

(2) Unrestricted garbage--includes the vegetable, fruit, dairy, or baked goods refuse matter and vegetable waste and refuse accumulations resulting from handling, preparing, cooking, or consuming food containing only vegetable matter, liquid or otherwise.

(3) Person--includes any individual, partnership, association, corporation, company, joint stock association, governmental subdivision, public or private organization of any character, body politic or any organized group of persons, whether incorporated or not; including any trustee, receiver, assignee, or similar representative thereof.

(b) A person is prohibited from feeding restricted garbage to swine or providing restricted garbage to any person for the purpose of feeding swine, except a facility operated by the Texas Department of Criminal Justice may feed restricted garbage to swine if the garbage is properly treated in accordance with applicable federal requirements.

(c) A person may feed unrestricted garbage to swine only if the person first registers with and secures a permit from the commission.

(1) Each location where unrestricted garbage is fed to swine shall be registered with the commission [Commission].

(2) Registered locations shall be issued a permit upon compliance with the requirements contained in this section.

(3) Feral swine shall not be fed on the premises of a registered location.

(4) Prior to registration/re-registration approval, a swine brucellosis and pseudorabies negative test may be required on all breeding swine based on the outcome of a disease risk analysis of the herd. Tests for other diseases may be conducted on the samples collected for registration approval or renewal.

(5) An annual disease risk analysis shall be conducted by a state or federal inspector on each registered location.

(6) As determined by an analysis of risk for swine brucellosis and pseudorabies and other diseases of concern that may be transmitted among swine or to other species of livestock, the commission may require a test or tests of swine on the registered location at any time the commission determines that the risk is sufficient to warrant a test.

(d) Garbage feeding permit.

(1) Permits are valid for two years [a two year period] from the date of issuance.

(2) [Application.] Application for a permit shall be submitted on a form prescribed by the commission [Commission] providing at least the following information:

(A) Name, address and telephone number of the applicant;

(B) Physical location of the garbage feeding facility;

(C) Type of garbage to be fed; and [source(s) of garbage received]

(D) Name, address and telephone number of the source for garbage or potential garbage received.

(3) Renewal. To renew a garbage feeding facility permit, a person must submit an application on a form prescribed by the commission 30 to 60 days prior to the expiration of the permit:[.]

(A) A disease risk analysis shall be conducted by the commission on each registered location 30-60 [30 - 60] days prior to expiration of the permit [and it will be necessary to reapply].

(B) If an [a properly completed] application for the renewal of a permit is not properly completed [made] between 30 and 60 [30 - 60] days prior to its expiration, the permit will terminate at the end of its stated term.

(C) A permit expiration date may be extended if the renewal application is pending completion due to [An extension of the permit expiration date may be provided pending completion of] the disease risk analysis and any required testing resulting from the analysis.

(D) The commission may revoke or deny renewal of a permit if a garbage feeding facility fails to meet the requirements of this section or violates any provision of Chapters 161 or 165 of the Texas Agriculture Code. The revocation or denial will remain in effect until the deficiencies causing the revocation or denial are corrected and any penalties assessed as a result of the revocation or denial are satisfied. The garbage feeding facility permit may be revoked for blatant or repetitive violation(s) of this section or Chapters 161 or 165 of the Texas Agriculture Code.

(e) Inspection authority.

(1) For the purpose of inspection, examination, or sampling, commission [Commission] representatives are entitled to enter at reasonable hours any building or place owned, controlled, or operated by a permitted person if from probable cause it appears that the building or place is in the business of feeding garbage to swine.

(2) A commission representative shall perform inspections of applicants for registration at a time when normal feeding activities can be observed.

(f) Facilities.

(1) Garbage shall not be fed on the ground.

(2) If feeding platforms are used, there must be watertight platform space of at least three square [three-square] feet to feed [for] each hog [to be fed].

(3) If troughs are used, at least one linear foot must be supplied for each hog to be fed.

(g) Records: The permit holder shall maintain a daily log reflecting the amount of garbage collected and the sources of such garbage. A copy of the log shall be provided to a commission representative upon request during normal business hours. The log shall be maintained for one year from the date of entry.

(h) Sanitation

(1) Water.

(A) There shall be a sufficient supply of water for cleaning.

(B) There shall be a sufficient supply of clean water available for swine to drink at all times.

(C) Shelters and feeding areas shall be constructed to provide for satisfactory drainage.

(2) Rodent and Pest Control.

(A) Effective fly and rodent control measures shall be used.

(B) Containers used to transport or store garbage shall be closed and sufficiently sealed to prevent access by rodents or insects. These containers shall be kept clean and free from accumulations of grease or foreign matter.

(3) Excess garbage shall be removed from the premises, and shall [is] not [to] remain on the premises over 36 hours. Unused, excess, or spoiled garbage shall be buried or burned and shall under no circumstances be poured or dumped in the feeding or cooking area.

(4) Animal carcasses [Dead animals] shall be removed from the registered location premises promptly and disposed of in accordance with §59.12 of this title and applicable state and local ordinances.

(i) [Violations and Penalties.] In addition to any other violations that may arise under the act or this chapter, it is a violation for any person to falsify an application.[:]

[(1) It is a violation for any person to falsify an application.]

[(2) Any violation of these rules is subject to the appropriate administrative, civil or criminal penalties. In addition, the agency may revoke or deny renewal of a permit, and/or assess administrative penalties against any person for a violation of these rules.]

[(j) The prohibition contained in subsection (b) of this section is nonapplicable for a facility operated by the Texas Department of Criminal Justice if the garbage is properly treated in accordance with applicable federal requirements.]

§55.4.Livestock Markets Handling Swine.

(a) An official backtag is a United States Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS), Veterinary Services (VS) approved identification backtag. The backtag [It] must conform to the national uniform tagging system and uniquely identify [identifies] each individual animal with alphanumeric [alpha-numeric] identification. [The tag may be encased in a strip of nylon mesh that adheres to the tag.]

[(b) Test eligible swine at markets are defined to mean sexually, intact swine that are six months of age or older.]

(b) [(c)] Livestock markets that handle feeder or breeding [and breeder] swine must have well-constructed, well-lighted, concrete or other approved imperviously surfaced pens. [Those markets not in compliance with this rule on the date of adoption shall have 120 days after such adoption to bring their facilities up to standards.] If adequate pens are not [have not been] constructed at any market [within the aforesaid 120 days], no further sales of feeder or breeding [and breeder] swine shall be permitted at that market.

(c) [(d)] Feeder and breeding [breeder] swine must be maintained separately from slaughter swine. Feeder and breeding [breeder] swine must be sold before the sale ring is used for slaughter swine.

(d) [(e)] No feeder or breeding [breeder] swine may [will be permitted to] remain in the livestock market for more than 72 hours. No slaughter swine may [will be permitted to] remain in the livestock market for more than 120 hours (five days).

(e) [(f)] No slaughter swine shall [will] be released from the livestock market unless the slaughter swine [they] are:

(1) consigned for immediate slaughter; or

(2) consigned to one other livestock market for sale only to slaughter as long as dealer records are maintained on both the buyer and seller, and swine are moved under permit when moving from markets that are not approved under 9 CFR §71.20 [the Code of Federal Regulations, Part 76].

(f) [(g)] When there is evidence of classical swine fever [hog cholera] within a livestock market, all swine therein shall be immediately quarantined. No swine movement into, out of, or within the market shall be allowed until permitted [until authorized] by a representative of the commission.

(g) [(h)] Market identification with an official backtag is required on all test eligible swine in each consignment to a livestock market. The market shall record the following information on each consignment to the market:

(1) full name, street address and/or route address and zip code of the owner or caretaker of the swine at the time of delivery to the market;

(2) backtag number with prefix for each head of swine; and

(3) delivery vehicle license number.

(h) [(i)] Requirements for testing test-eligible [of test eligible] swine at the market.

(1) Blood samples shall be collected from test-eligible swine that are sold for testing for swine brucellosis and pseudorabies. These samples may be collected either prior to or after sale but prior to leaving the market.

(2) If result of the blood test is unknown prior to leaving the market, swine may be moved to the buyer's premises [premise of the buyer] under permit and hold order [Hold Order] pending result of that test.

(3) Swine that originate directly from a herd with a recognized free status for that disease or if they were tested negative within the previous 30 days are exempt from the testing requirement. Proof of a disease-free status or negative test must be presented at time of sale.

(4) Each animal(s) tested shall be officially identified by a USDA Veterinary Services approved identification eartag (metal, plastic, or other) that conform to the nine-character alphanumeric [alpha-numeric] National Uniform Eartagging [Ear-tagging ] System and an official backtag.

(5) Pursuant to §55.8 this title, the market shall maintain official backtag information correlating the backtag number to both the seller and the buyer of those swine for a minimum of two years from the date of the transaction.

(6) At the time of blood sample collection, a [the] swine test chart (TAHC Form 91-26 or VS Form 4-54S) shall be completed in its entirety.

§55.5.Pseudorabies.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless indicated otherwise.

(1) Approved feeder-pig [feeder pig] market--A livestock market where only feeder pigs from the following herds of origin are accepted for sale in accordance with federal interstate regulations and applicable provisions of the federal program standards:

(A) All swine must originate in a qualified pseudorabies-negative [pseudorabies qualified negative] herd;

(B) All swine must originate in a pseudorabies-monitored feeder-pig [pseudorabies monitored] herd;

(C) Each animal must have an official 30-day pseudorabies serologic test [of each animal]; or

(D) All swine must originate from a state that has achieved Pseudorabies Eradication Program status of [from a] Stage IV or V [state].

(2) Approved slaughter market--A livestock market at which shipments of slaughter swine only are permitted in accordance with applicable state and federal regulations. No swine may be released from an approved slaughter market unless consigned directly to a recognized slaughtering establishment for immediate slaughter.

(3) Commercial Production Swine (Commercial Swine)--Those swine that are continuously managed and have adequate facilities and practices to prevent exposure to either high-risk domestic (transitional production) [transitional production] swine or feral swine.

(4) Commission--Texas Animal Health Commission.

(5) Continuous flow feeder facility [feedlot ]--A premises where [premise which] there is a constant population of swine in various stages of finish, being fed for slaughter purposes.

(6) Direct shipment--Movement without unloading en route, without contact with swine of lesser pseudorabies status, and without contact with infected or exposed livestock.

(7) Executive Director--Executive Director of the Texas Animal Health Commission.

(8) [(7)] Farm of origin--A farm where the swine were born[,] or on which they have resided for at [a] least 90 [60] consecutive days immediately prior to movement.

(9) Infected Herd--Any herd in which any swine have been determined to be infected with pseudorabies virus by a designated State or Federal veterinarian whose diagnosis is supported by official pseudorabies test results.

(10) [(8)] Official random-sample [random sample] test (95/5)--A sampling procedure utilizing official pseudorabies serologic tests which provides a 95% probability of detecting infection in a herd in which at least 5.0% of the swine are seropositive for pseudorabies. Each segregated group of swine on an individual premises must be considered a separate herd and sampled as follows:

(A) less than 100 head--test 45 or entire herd, whichever is the smaller;

(B) 100-200 head--test 51;

(C) 201-999 head--test 57;

(D) 1,000 head and over--test 59.

(11) [(9)] Official pseudorabies [Recognized] tests--Tests for the diagnosis of pseudorabies approved by USDA-APHIS-VS [USDA, APHIS, VS]. Those tests are:

(A) microtitration serum-virus neutralization;

(B) virus isolation and identification;

(C) fluorescent antibody tissue section;

(D) Enzyme Linked Immunosorbent Assay (ELISA), specifically PRV-gB-ELISA or PRV-gpI-ELISA;

(E) latex agglutination; and[.]

(F) Particle Concentration Fluorescence Immunoassay (PCFIA), including the gpI PCFIA test.

(12) [(10)] High-Risk Domestic [Transitional Production] Swine--Captive swine located in feral swine areas in which management practices allow for possible exposure via direct or indirect feral swine contact. High-risk domestic swine are formerly referred to as transitional or transitional production swine [Swine that have a reasonable opportunity to be exposed to feral swine or captive feral swine].

(b) Commercial Swine.[:] To qualify as a producer of commercial swine, the producer must implement sufficient safeguards, including, but not limited to [(i.e.,] management practices, perimeter fencing, and confinement [etc.)] to prevent commingling and [or ensure that] nose to nose contact with feral or high-risk domestic [transitional] swine [cannot occur]. Feral swine shall not be [intentionally] commingled with commercial swine.

(c) Animal Identification. Breeding swine sold or destined for slaughter are required to be identified to the farm of origin[,] using a method recognized by the commission[, to the farm-of-origin].

(d) Movement Restrictions: All herds suspected [suspicious] of pseudorabies [PRV] will be placed under movement restrictions and investigated pending final determination. Final determination of the presence or absence of pseudorabies [PRV] in a herd shall be made by the investigating veterinarian in consultation with an epidemiologist designated by the Executive Director [official pseudorabies epidemiologist ]. Official diagnosis shall be based on an official pseudorabies test [standard diagnostic procedures including the serum neutralization or other recognized tests].

(e) Pseudorabies Management of Infected, Exposed or Area Herds.

(1) If an animal is determined to be infected with pseudorabies [PRV], it shall be identified by placing an approved [a red serially numbered] reactor tag in the left ear. The infected herd shall be disposed of within 15 days after test results are reported. Disposition may include destruction or permitted movement to slaughter by a VS Form 1-27.

(2) Following a determination that a herd is infected, a herd plan to eradicate the disease from a swine herd will be developed. The plan shall be developed by a State or Federal [state/federal ] veterinarian [of the swine pseudorabies control program] in consultation with the herd owner or caretaker and his or her veterinarian. The plan shall include provisions for release of quarantine as specified in this subsection. The plan developed by the commission shall be final and the owner or caretaker will be provided a copy.

(3) All exposed herds will be placed under movement restrictions, using a quarantine or hold order, until negative diagnostic test results [of exposure] are determined.

(4) All swine herds within a 2.0 mile radius of infected premises will be monitored either by a test of all breeding swine or an official random sample test. All exposed swine herds as determined by epidemiological investigation and all swine herds within 2 miles of the new case shall be tested with an official random-sample [sample] test (95/5). Testing of the herds must be accomplished, with negative test results, no earlier than 30 days and no later than 60 days after depopulation of the affected herd and of the premises.

(5) Swine showing clinical signs of pseudorabies [PRV] shall not be removed from the premises. Swine on a quarantined premises [premise] not showing clinical signs of pseudorabies [PRV] may be moved only directly to a slaughter plant and accompanied by a permit issued by a state or federal inspector, or may be shipped directly to a slaughter plant in an official sealed vehicle[,] when accompanied by a permit.

(6) Vehicles used for slaughter delivery of movement-restricted [restricted] swine will be cleaned and disinfected immediately after unloading and prior to loading with other livestock.

(7) Movement restrictions [Restrictions] will be released in the following instances:

(A) when all reactor animals have been removed from the premises [premise];

(B) when there have been no clinical signs of pseudorabies [PRV] on the premises after removal of the reactor swine; and

(C) when all exposed swine over six months of age along with a number of progeny equal to 20% of the breeding swine selected from the oldest portion of swine under six months of age remaining in the herd have withstood one negative herd test. The test must be conducted not less than 30 days from removal of last infected animals. Herd additions must be tested negative prior to being added to the herd, remain on the premises 30 or more days, and be retested negative; or

(D) when all swine on the premises are depopulated; the premises is [are] cleaned and disinfected under the direction of state or federal personnel and 30 days have passed with no swine on the premises following cleaning and disinfecting.

(f) Pseudorabies Vaccine [PRV vaccine].

(1) Vaccination of swine with a pseudorabies [PRV] vaccine is prohibited without written permission of the Executive Director [executive director]. Written permission may be granted only for use in high-risk [high risk] herds or as part of an approved herd cleanup [herd-cleanup] plan.

(2) Approved pseudorabies [PRV] vaccine shall be a product for which there is a laboratory test approved by the Executive Director [executive director] available to differentiate between vaccine and field infection titers.

(3) The Executive Director [executive director of the Texas Animal Health Commission] will restrict the sale of approved pseudorabies [PRV] vaccine to a TAHC Authorized Veterinarian [practicing accredited veterinarian] for use only in infected and high-risk [high risk] herds. [Official state laboratory confirmation of PRV constitutes an infected herd.] The Executive Director [executive director] will request a specific number of doses of vaccine to be shipped to the TAHC Authorized Veterinarian [practicing veterinarian] making the request.

(4) The herd owner will sign a memorandum of understanding with the commission [Texas Animal Health Commission], and the TAHC Authorized Veterinarian [practicing veterinarian ] will be accountable for the vaccine and its use by signing an agreement to this effect.

(5) All vaccinated animals shall [are to] be marked with a hole punched in the left ear of not less than 1/2 inch in diameter at the time of vaccination or other form of identification approved by the commission.

(6) The movement restrictions will be released as provided for in this section utilizing an approved test that will identify vaccine titers.

(g) Qualified pseudorabies negative herd.

(1) Qualified pseudorabies [PRV] negative herd status is attained by 100% testing of the adult breeding herd over six months of age plus a number of progeny equal to 20% of the breeding swine population in the herd and finding them negative to an official pseudorabies serologic test. Progeny shall be randomly selected from the oldest swine in the herd less than six months of age. The herd must not have been a known infected herd within the past 30 days. A minimum of 90% of the swine in the herd must have been on the premises and part of the herd for at least 90 [60] days prior to the qualifying official pseudorabies serologic test[,] or have entered directly from another qualified pseudorabies negative herd.

(2) Qualified pseudorabies negative herd status is maintained by conducting an official pseudorabies serologic test at least once each year on at least 80% of the swine over six months of age and on a number of progeny equal to 20% of the breeding swine population of the herd [at least once each year]. All swine tested shall be randomly selected and in the case of adult swine, representative of all age groups on the premises. This must be accomplished by testing 25% of the required breeding swine and progeny every 80 to 105 days and finding all swine so tested negative, or by testing 10% of the required breeding swine and progeny each month and finding all swine so tested negative. No swine shall be tested twice in one year to comply with the 25% requirement or twice in 10 months to comply with the 10% requirement.

(3) If on a qualifying official pseudorabies serologic test or any subsequent official pseudorabies test, any swine are tested positive, qualified pseudorabies negative herd status is suspended until the infection status of the herd is determined through testing and an epidemiological study of the herd. Before qualified pseudorabies negative herd status may be attained or regained [maintained ], all seropositive swine must be sold for slaughter and the herd tested and released from movement restrictions as provided for in subsections (e) and (g) of this section. [Herd additions must be tested negative SN or any recognized PRV test within 30 days prior to entry on the premises; isolated at least 30 days and retested prior to adding them to the herd or:]

[(A) moved directly from another qualified PRV negative herd;]

[(B) added from another qualified pseudorabies negative herd, but with interim contact with swine other than those from a single qualified pseudorabies negative herd, isolated until they have been found negative to an official pseudorabies serologic test, conducted 30 days or more after the swine have been placed in isolation;]

(C) isolated upon return to the herd after contact with swine other than those from a single qualified pseudorabies negative herd. They shall be isolated until found negative to an official pseudorabies serologic test conducted 30 days or more after being placed in isolation.]

(4) All swine intended to be added to a qualified pseudorabies negative herd shall be isolated until the swine are tested negative on two official pseudorabies serologic tests, one conducted 30 days or more after the swine have been placed in isolation and the second conducted 30 days or more after the first test, unless any of the following exceptions apply:

(A) Swine intended to be added to a qualified pseudorabies negative herd directly from another qualified pseudorabies negative herd may be added without isolation or testing;

(B) Swine intended to be added to a qualified pseudorabies negative herd from another qualified pseudorabies negative herd, but with interim contact with swine other than those from a single qualified pseudorabies negative herd, shall be isolated until the swine have been found negative to an official pseudorabies serologic test, conducted 30 days or more after the swine have been placed in isolation; or

(C) Swine returned to the herd after contact with swine other than those from a single qualified pseudorabies negative herd shall be isolated until the swine have been found negative to an official pseudorabies serologic test conducted 30 days or more after the swine have been placed in isolation.

(5) [(4)] Test records will be maintained by the commission [Texas Animal Health Commission] at its Central Office [Austin office]. Herd owners or caretakers will receive a letter from the Executive Director's designee [executive director of the Texas Animal Health Commission] listing test dates, test results, the laboratory in which the test was run, and the qualified herd status of the herd.

(h) Requirements for a pseudorabies-monitored feeder-pig [pseudorabies monitored feeder pig] herd. To qualify as a pseudorabies-monitored feeder-pig [monitored feeder pig] herd, breeding swine must sample and test [have been sampled and tested] negative to [by] an official pseudorabies serologic test during the last 12 months at the following rate:

(1) 10 head--test all;

(2) 11 to 35 head--test 10;

(3) 36 head or more--test 30% or 30, whichever is less. Breeding swine that are tested are to be selected at random from all age groups, including herd boars, with all groups to be proportionately represented.

(i) Requirements for continuous flow feeder facilities [feedlots on premises] in which there are no breeding animals on the premises [on which there are no breeding animals]. When provisions of the State-Federal-Industry Program Standards for Pseudorabies Eradication require surveillance testing of these feeder facilities [feedlots] for advancement of the state to the next stage of the eradication program, one of the following methods will be used to satisfy this requirement.

(1) Collection of blood from a random sample of swine in the feeder facility [feedlot] in the following representation:

(A) less than 100 head in the feeder facility [feedlot]--test 25;

(B) 100-200 head--test 27;

(C) 201-999 head--test 28;

(D) 1,000 head and over--test 29.

(2) Collection of blood from swine consigned from a feeder facility [feedlot] at slaughter using the criteria shown in paragraph (1) of this subsection, to determine the number of swine to be tested.

(j) Owner assistance. If ordered by the commission or its representative, the owner or caretaker of swine shall submit the swine and furnish labor and facilities used in normal operation in order that the swine may be tested, vaccinated, or otherwise handled in accordance with this chapter.

§55.7.Slaughter Plant Requirements.

(a) [Requirements of a slaughter test.] Slaughter plants that slaughter [kill] sows and boars shall:

(1) maintain records [identification] of sows and boars to allow tracing to their herd of origin, including, but not limited to, swine identification, packer's lot number, seller's name and address, and number of swine for at least two years [animals];

(2) collect blood samples [arrange for blood collection] from carcasses of all sows and boars that can be traced to a farm of origin;

(3) enter individual swine identification on the VS Form 4-54S or TAHC Form 91-26 [4-54 individual identification of the swine] in relation to the samples collected and submit the blood samples with the completed VS Form 4-54S or TAHC Form 91-26 [4-54] to the designated state diagnostic laboratory [state-federal laboratory] for swine brucellosis and pseudorabies tests [on the blood];

(4) submit daily slaughter [kill] sheets and the completed test record (VS Form 4-54S or TAHC Form 91-26 [4-54]) to the commission-designated state diagnostic laboratory showing the identification of each animal to the person or firm from which the swine were secured (full name and address); and [.]

(5) make records available to a commission representative upon request.

(b) Collection of samples at slaughter plants.

(1) Veterinarians, authorized slaughter plant employees, or regularly employed representatives of the Texas Animal Health Commission or the United States Department of Agriculture are authorized to collect blood samples to conduct [for the purpose of conducting] tests for swine brucellosis and pseudorabies.

(2) The slaughter plant is responsible for mailing blood samples and records to the commission-designated state diagnostic laboratory [designated state lab] within 24 hours following collection.

§55.9.Feral Swine Requirements, Facility Approval and Authorization.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Approved holding facility--A pen or pens approved by the commission to temporarily hold feral swine pending movement to a recognized slaughter facility, an authorized hunting preserve, or another approved holding facility.

(2) Authorization--The required written and signed commission documents [required of this chapter] to show compliance with the requirements of the chapter.

(3) Authorized Hunting Preserve--Land where feral swine are authorized to be released for the purpose of hunting.

(4) Domestic Swine--Swine (Sus scrofa) other than feral swine.

(5) Feral swine--Swine that have lived all (wild) or any part (feral) of their lives free-roaming.

(6) Free-Roaming--Not confined by man to pens, houses or other facilities designed to hold swine and prevent their escape.

(7) Recognized slaughter facility--A slaughter facility operated under the state or federal meat inspection laws and regulations.

(8) Swine-Proof Fence--A fence constructed to sufficient construction standards with materials of hog-proof net, woven or welded wire and wood, metal or other approved posts and maintained to prevent the ingress and [or] egress of feral swine.

(b) Required Authorization for Movement of Feral Swine. These requirements apply to any person who traps feral swine and moves live feral swine from the premises [or location] where the feral swine were trapped or otherwise captured. Movement of live feral swine is prohibited unless authorized by paragraphs (1) - (7) of this subsection:

(1) The feral swine are moved directly from the premises where the feral swine were trapped to a recognized slaughter facility;

(2) The feral swine are moved directly from the premises where the feral swine were trapped to an approved holding facility;

(3) The feral swine are moved directly from the premises where the feral swine were trapped to an authorized hunting preserve;

(4) The feral swine are moved from an approved holding facility to a recognized slaughter facility;

(5) The feral swine are moved from an approved holding facility to an authorized hunting preserve;

(6) The feral swine are moved from an approved holding facility to another approved holding facility;

(7) Feral swine that have been trapped and are [being ] held for transportation to an authorized location, as provided by this subsection, may be held in an escape-proof cage on the vehicle or trailer that transported them from the premises where they were trapped [their original premise], or held within the transport trailer itself for up to seven days.

(c) Approved Holding Facility.

(1) To hold live feral swine at a location other than the premises where the feral swine were trapped or otherwise captured, a person must apply and receive commission authorization to become [for] an approved holding facility. Authorization is required for each holding facility.

(2) Written approval for a feral swine holding facility may be given after an initial inspection by commission personnel determines that the facility meets the following criteria:

(A) The facility has a swine-proof fence constructed to prevent any feral swine from escaping and continually maintained by the owner and/or operator to prevent the ingress and [or] egress of feral swine;

(B) The facility shall not be located within two hundred yards of any domestic swine pens;

(C) Only feral swine may be placed in the facility;

(D) Records shall be maintained by the registrant as provided in paragraph (4) of this subsection, and the facility must provide records when requested or inspected;

(E) Feral swine shall not be [intentionally] commingled with domestic or exotic swine;

(F) Feral swine shall not be fed any garbage or waste as it is defined in Chapter 165 of the Texas Agriculture Code;

(G) Animal carcasses [Dead animals] shall be removed from the approved holding facility [premises] promptly and disposed of in accordance with §59.12 of this title and applicable state and local ordinances, [any applicable requirement or applicable ordinances] or at the direction of commission personnel; and

(H) Feral swine shall only be moved from the facility directly to a recognized [an approved] slaughter facility, an authorized hunting preserve, or another approved holding facility.

(3) Application for Approved Holding Facility. Application and renewal for an approved holding facility shall be on a form prescribed by the commission and include at least the following information:

(A) Name, address and telephone number of applicant;

(B) Facility name, physical location, county, directions to facility, telephone number;

(C) Diagram of the surrounding areas and the pens;

(D) Facility photos, including pens [Pictures of the pens];

(E) Signature of the owner or operator [owner/manager];

(F) The authorization is valid for two years from the date of issuance and shall expire on the two year anniversary date of the date of issuance unless reauthorized [re-authorized]; and

(G) Reauthorization [Re-authorization] of the approved holding facility shall be completed between [within] 30 and [to] 60 days prior to the expiration date.

(4) Recordkeeping [Record Keeping].

(A) Owners and operators of approved holding facilities and authorized hunting preserves shall generate and maintain the following records: [Records to be generated and maintained by owners and/or operators of approved holding facilities and authorized hunting preserves shall include the following:]

(i) The number of swine placed in and removed from the facility and/or preserve;

(ii) The approximate weight, size, color, sex and any applied identification for each feral swine;

(iii) Dates feral swine were placed into and/or removed from the holding facility or hunting preserve;

(iv) The physical location where feral swine were trapped; and

(v) The physical location that feral swine were moved to, including any unique identification number.[; and]

(B) The records shall be provided to an authorized agent of the commission upon request. Records shall be kept and maintained for not less than five years from the date the record was generated.

(5) [Suspension/Revocation.] The commission may suspend or revoke the authorization for an approved holding facility if the owner or operator fails to generate, maintain or provide records on feral swine as provided in paragraph (4) of this subsection, fails to maintain swine-proof fences to prevent the ingress and [or] egress of feral swine, or violates any provision [of the provisions] of this chapter or [the provisions of] Chapter 161 of the Agriculture Code. The suspension will remain in effect until the deficiencies causing [that were the cause of] the suspension or revocation are corrected and any penalties assessed as a result of the suspension are satisfied. The commission will notify the preserve in writing when the suspension has been lifted [and a written suspension release is provided by the agency]. The authorization of [for] a holding facility may be revoked for blatant or repetitive violation(s) of this chapter or Chapter 161 of the Texas Agriculture Code [the feral swine law or rules or for repeated failure to meet the requirements contained in this chapter].

(d) Authorized Hunting Preserve.

(1) To trap, move, and release live feral swine, a person must apply and receive commission authorization for a hunting preserve. Authorization is required for each hunting preserve.

(2) If feral swine are to be trapped and moved for release to a hunting preserve, the hunting preserve shall meet the following requirements:

(A) Only male feral swine (i.e. boars and/or barrows) may be trapped, moved and released on [to] a hunting preserve;

(B) Any feral swine released must be individually identified with an official USDA tag, RFID tag, or other commission-approved [a commission approved] form of identification prior to release;

(C) Records shall be generated and maintained as provided in subsection (c)(4) of this section;

(D) Have a Hunting Lease License with the Texas Parks and Wildlife Department and the license must be current and in good standing with that agency, as provided for in Chapter 43 of the Texas Parks and Wildlife Code;

(E) Be enclosed by a swine-proof fence [and the fence shall be] maintained continually to prevent the ingress and egress of feral swine;

(F) Feral swine shall not be fed any garbage or waste as defined in Chapter 165 of the Texas Agriculture Code; and

(G) The commission may suspend or revoke the authorization of [for] a hunting preserve [may be suspended or rescinded] if owner or [and/or] the operator fails to generate, maintain or provide records on feral swine as provided in subsection (c)(4) of this section, sufficient fences are not maintained, or violates any provision [of the provisions] of this chapter or [the provisions of] Chapter 161 of the Texas Agriculture Code. The suspension will remain in effect until the deficiencies causing [that were the cause of] the suspension or revocation are corrected and any penalties assessed as result of the suspension are satisfied. The commission will notify the preserve [will be notified] in writing when the suspension has been lifted. The authorization for a hunting preserve may be revoked [rescinded] for blatant or repetitive violation(s) of this chapter or Chapter 161 of the Texas Agriculture Code [the feral swine law or rules or for repeated failure to meet the requirements contained in this chapter].

(3) Application for Authorized Hunting Preserve.

(A) Applications shall be completed on a form prescribed by the commission, which includes the following information:

(i) Name, mailing address and telephone number of the applicant;

(ii) Physical location, [and] county, directions to the facility, and facility telephone number;

(iii) A current copy of the Hunting Lease License issued by Texas Parks and Wildlife Department; and

(iv) Signature of the owner or operator [owner/manager ] stating that [states that] the facility fences meet the requirements of a [for] swine-proof fence [fences] as contained in subsection (a) of this section.

(B) The authorization is valid for two years from the date of issuance. The authorization shall expire on the two year anniversary date of the date of issuance unless reauthorized [re-authorized ]. Reauthorization [Re-authorization] of the hunting preserve shall be completed between [within ] 30 and [to] 60 days prior to the expiration date.

(C) The commission may revoke or deny reauthorization of a permit.

(D) [(C)] Commission personnel may perform inspections of the [The] facility, [may be inspected periodically by agency personnel] and the facility must continually meet the requirements of this chapter.

(e) Change in Classification of Feral Swine. Free-roaming swine may qualify [be qualified] for reclassification as domestic swine upon completion of the following test protocol:

(1) Three consecutive official tests for swine brucellosis and pseudorabies[, with negative results,] shall be conducted on all swine in the herd unit in order to qualify for reclassification. Negative results are required. The first test must be at least 30 days after any reactor swine [reactors] have been removed and slaughtered and the second test must be 60 to 90 days after the first test. A third test is required 60 to 90 days following the second negative results; and

(2) In addition to the requirements in paragraph (1) of this subsection, any sexually intact female swine must also test negative for swine [undergo a] brucellosis and pseudorabies [test, with negative results,] not less than 30 days after their initial farrowing.

(f) Testing. Feral swine that test [which are] positive for swine brucellosis and/or pseudorabies shall be handled in accordance with the requirements for swine brucellosis, as contained in Chapter 35, Subchapter B of this title (relating to Eradication of Brucellosis in Swine) and for pseudorabies as contained in Chapter 55 of this title (relating to Swine).

(g) Inspection Authority.

(1) A commission representative [person employed by the commission] may enter public or private property for the exercise of an authority or performance of a duty under this chapter or Chapter 161 of the Texas Agriculture Code.

(2) A commission representative shall perform periodic inspections of authorized facilities and locations, and records related thereto, to ensure compliance with the requirements under this chapter or Chapter 161 of the Texas Agriculture Code [of the act or this chapter].

(h) [Violations and Penalties.] In addition to any other violations that may arise under [the act or] this chapter, it is a violation for any person to falsify an application.

[(1) It is a violation for any person to falsify an application.]

[(2) Any violation of these rules is subject to the appropriate administrative, civil or criminal penalties. In addition, the agency may revoke or deny renewal of a permit and/or assess administrative penalties against any person for a violation of these rules.]

§55.10.Enforcement and Penalties

(a) A person who violates a rule or order under this chapter is subject to administrative penalties, criminal penalties, sanctions, and civil remedies as authorized by Chapter 161 and Chapter 165 of the Texas Agriculture Code.

(b) An administrative penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102878

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 719-0724


CHAPTER 59. GENERAL PRACTICES AND PROCEDURES

4 TAC §59.5

The Texas Animal Health Commission (commission) proposes amendments to §59.5, concerning Open Records. The proposed amendments clarify language on submitting public information requests and make terminology more consistent. A proposed amendment removes current §59.5(b), which describes requests submitted by mail to the attention of the General Counsel. By specifying that requests may be sent to one of the methods indicated on the agency's website, the rule would help ensure that any requests are promptly forwarded to the commission's Public Information Coordinator. A proposed amendment relating to charges for public records removes an outdated reference and examples of records that may be furnished without charge and incorporates by reference the Office of the Attorney General's (OAG) cost rules. A proposed amendment regarding inspection of records clarifies when a member of the public may physically inspect records and allows for the denial of access under certain circumstances.

BACKGROUND:

The Texas Public Information Act (Act) gives the public the right to request access to government information. The Act is triggered when a person submits a written request to a governmental body. The request must ask for records already in existence and does not require a governmental body to create new information, do legal research, or answer questions.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff, determined for the first five-year period the rules are in effect, there will be no significant additional fiscal implications for state or local government because of enforcing or administering the proposed rules, as commission personnel currently allocated to the administration and enforcement of regulatory diseases and activities will administer and enforce the rules as part of their current job duties and resources.

REGULATORY ANALYSIS

Public Benefit: Ms. Sines also determined that for each year of the first five years the rules are in effect, the public benefit anticipated because of enforcing or administering the rules will be greater transparency because the rules provide the public with several clear and accessible methods from which to choose to make a public information request and consistency in the commission's application of the Texas Public Information Act.

LOCAL EMPLOYMENT IMPACT STATEMENT

In accordance with Texas Government Code §2001.022, the commission determined that the proposed rules will not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

TAKINGS ASSESSMENT

The commission determined that a written Takings Assessment is not required under Texas Government Code, §2007.043.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

The commission determined that because the proposed rules will not result in any direct economic effect on any small business, micro-business, or rural community, neither the economic impact statement nor the regulatory flexibility analysis described in Texas Government Code, Chapter 2006, is required.

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code, §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). Except as provided below, the rule:

1. The proposed rules would not create or eliminate a government program;

2. Implementation of the proposed rules would not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed rules would not require an increase or decrease in fees paid to the commission;

5. The proposed rules would not create a new regulation;

6. The proposed rules would not expand existing rules and will not otherwise limit or repeal an existing regulation;

7. The proposed rules would not increase the number of individuals subject to the regulation; and

8. The proposed rules would not adversely affect this state's economy.

COST TO REGULATED PERSONS

The commission determined that for each year of the first five years in which the proposed rules are in effect, the proposed rules do not impose a direct cost on regulated persons, a state agency, a special district, or a local government, within the state. Therefore, it is not necessary to repeal or amend any other existing rule.

REQUEST FOR COMMENT

Comments regarding the proposed amendments may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax at (512) 719-0719 or by e-mail at comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

STATUTORY AUTHORITY

The amendments are adopted pursuant to the following authorities:

Texas Agriculture Code §161.046, titled "Rules", which authorizes the commission to adopt rules as necessary for the administration and enforcement of this chapter.

Texas Government Code §552.234, titled "Method of Making Written Request for Public Information", which authorizes the commission to approve one or more methods of delivery of requests for public information in addition to those required by statute and to designate one electronic mail address for receiving requests for public information.

Texas Government Code §552.261, titled "Charge for Providing Copies of Public Information", which authorizes the commission to charge for providing a copy of public information in an amount that reasonably includes all costs related to reproducing the public information, including costs of materials, labor and overhead.

No other statutes, articles or codes are affected by the proposal.

§59.5.[Open Records] Public Information Act Requests.

(a) Definitions. The following words and terms, when used in this section, will have the following meanings, unless the context clearly indicates otherwise.

(1) Agency--The Texas Animal Health Commission.

(2) Executive Director--The chief executive officer of the commission appointed by the commissioners.

(3) Public information request--A written request made for public information pursuant to Texas Government Code, Chapter 552 (the Texas Public Information Act). Another name for a "public information request" is an "open records request," and these terms may be used synonymously.

(4) Public Information Coordinator--A person appointed by the Executive Director to facilitate the processing of public information requests.

[(a) Charges for Copies of Public Records. The charge to any person requesting copies of any public record of the Texas Animal Health Commission (TAHC) will be the charge established by the General Services Commission at 1 TAC §§111.61-111.70. TAHC shall furnish public records without charge if it determines that waiver of the fees is in the public interest. Examples of records that may be furnished without charge are:]

[(1) records provided in response to requests from government agencies; and]

[(2) records that relate directly to the requester, such as the requester's own test or employment records.]

(b) Requests for Public Records. A person seeking records under Texas Government Code, Chapter 552, Public Information, must submit a request in writing. The request must reasonably identify the records requested and be submitted to the agency's Public Information Coordinator by one of the following methods: [Members of the public may request public records by sending a written request to the Texas Animal Health Commission, Attention: General Counsel, P.O. Box 12966, Austin, Texas 78711-2966.]

(1) United States mail to Texas Animal Health Commission, P.O. Box 12966, Austin, TX 78711;

(2) electronic mail to Open_Records@tahc.texas.gov;or

(3) Hand Delivery to 2105 Kramer Lane, Austin, TX 78758.

(c) Charges for Copies of Public Records.

(1) Charges made for providing copies of public information by the Texas Animal Health Commission shall be assessed in accordance with the schedule of charges maintained by the Office of the Attorney General (OAG) and found at 1 TAC §§ 70.1-70.12.

(2) The agency may furnish public records without charge or at a reduced charge if the agency determines that a waiver or reduction of the charge is in the public interest.

(d) Inspection of Records.

(1) Access to records for purposes of inspection will be by appointment only and during the regular business hours of the agency.

(2) If the safety of any public record or the protection of confidential information is at issue, or when a request for inspection would be unduly disruptive to the ongoing business of the office, the agency may deny physical access and the option of receiving copies at the prescribed charges will be provided.

(3) A person may not remove an original copy of an official agency record from the offices of the agency.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 26, 2021.

TRD-202102873

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: September 5, 2021

For further information, please call: (512) 719-0724