PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
CHAPTER 65. WILDLIFE
SUBCHAPTER B. DISEASE DETECTION AND RESPONSE
DIVISION 1. CHRONIC WASTING DISEASE (CWD)
The Texas Parks and Wildlife Commission in a duly noticed meeting on May 25, 2023 adopted amendments to 31 TAC §§65.82, 65.85, and §65.88, concerning Disease Detection and Response, without changes to the proposed text as published in the April 21, 2023, issue of the Texas Register (48 TexReg 2048). The rules will not be republished.
The amendments function collectively to refine surveillance efforts as part of the agency's effort to manage chronic wasting disease (CWD).
CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle and commonly known as "Mad Cow Disease"), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.
Much remains unknown about CWD, although robust efforts to increase knowledge are underway in many states and countries. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. Currently, there is scientific evidence to suggest that CWD has zoonotic potential; however, no confirmed cases of CWD have been found in humans. Consequently, both the CDC and the World Health Organization strongly recommend testing animals taken in areas where CWD exists, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to certain species of cervids and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant.
The department has engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD has been confirmed. The purpose of those CWD zones is to determine the geographic extent and prevalence of the disease while containing it by limiting the unnatural movement of live CWD-susceptible species as well as the movement of carcass parts.
The department's response to the emergence of CWD in captive and free-ranging populations is guided by the department's CWD Management Plan (Plan) https://tpwd.texas.gov/huntwild/wild/diseases/cwd/plan.phtml. Developed in 2012 in consultation with the Texas Animal Health Commission, other governmental entities and conservation organizations, and various advisory groups consisting of landowners, hunters, deer managers, veterinarians, and epidemiologists, the Plan sets forth the department's CWD management strategies and informs regulatory responses to the detection of the disease in captive and free-ranging cervid populations in the state of Texas. The Plan is intended to be dynamic; in fact, it must be so in order to accommodate the growing understanding of the etiology, pathology, and epidemiology of the disease and the potential management pathways that emerge as it becomes better understood through time. The Plan proceeds from the premise that disease surveillance and active management of CWD once it is detected are absolutely critical to containing it on the landscape. Accordingly, the first step in the department's response to CWD detections is the timely establishment of management zones around locations where detection occurs. One type of management zone is the surveillance zone (SZ), defined by rule as "a department-defined geographic area in this state within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected." Within an SZ, the movement of live deer is subject to restrictions and the presentation of harvested deer at a department check stations is required. In addition, deer carcass movement restrictions set forth in §65.88 of Subchapter B, Division 1 apply.
The Texas Parks and Wildlife Commission recently directed staff to develop guidelines or a standard operating procedure (SOP) with respect to the establishment and duration of the various management zones, including SZs. At the January 2023 meeting of the commission, staff presented the SOP for establishing SZs in scenarios where CWD has been detected in a deer breeding facility but not at any release site associated with a breeding facility. In such cases, the department will not establish an SZ if the following can be verified: 1) the disease was detected early (i.e., it has not been in the facility long); 2) the transmission mechanism and pathway are known; 3) the facility was promptly depopulated following detection; and 4) there is no evidence that free-ranging deer populations have been compromised. If any of these criteria is not satisfied, an SZ will be established to consist of all properties that are wholly or partially located within two miles of the property containing the positive deer breeding facility.
The amendment to §65.81, concerning Surveillance Zones; Restrictions, establishes ten new surveillance zones (SZ 9-18) and modifies two existing SZs (SZ 3 and SZ 8) in response to recent detections of CWD in deer breeding facilities and on associated release sites. As noted previously in this preamble, the department has been engaged in a long-term effort to stem the spread of CWD; however, by 2021 it was apparent that more robust measures were warranted because CWD was still being detected in additional deer breeding facilities. The commission adopted those rules, which require higher rates of testing, ante-mortem (live-animal) testing of breeder deer prior to release, and enhanced recordkeeping and reporting measures, in December of 2021 (46 TexReg 8724). This year is the first full year of the applicability of those measures.
On August 30, 2022, the department received confirmation that a yearling white-tailed buck deer in a deer breeding facility located in Gillespie County had tested positive for CWD; additional testing at that facility resulted in another positive test confirming CWD in a male yearling white-tailed deer on September 20, 2022 and a six-year-old female on December 15, 2022. On September 12-13 and October 12, 2022, the department received confirmation that five female white-tailed deer of approximately three years of age in a deer breeding facility located in Limestone County had tested positive for CWD. In response, the department promulgated emergency rules (47 TexReg 7615) to establish surveillance zones surrounding the affected facilities. The emergency rule expired on March 4, 2023. The amendment exercises the normal rulemaking process to replace the SZs established by the emergency rule, in accordance with the SOP. The amendment also modifies existing SZ 8 in Duval County. SZ 8 was established in response to the detection of CWD in a deer breeding facility. The modification shrinks the size of the current SZ to be consistent with the SOP. In addition, the amendment eliminates current paragraph (1)(H)(iii), which imposed a date for the termination of effectiveness of the affected subparagraph. In the course of deliberating the proposal, the commission determined that the efficacy of the new SOP for managing SZ delineations would be frustrated in the SZ in Duval County were the provision in question allowed to remain. The amendment also shrinks existing SZ 3 in Medina, Bandera, and Uvalde counties. The current SZ, along with a containment zone (CZ 3), was established in response to the detection of CWD in a number of deer breeding facilities, as well as in free-ranging deer on release sites associated with several facilities, in Medina County, and was enlarged in response to the confirmation of CWD in two more deer breeding facilities in adjacent Uvalde County (five positives (four males aged 1.5-3.4 years, one female aged 3.5 years) confirmed on March 29, 2021 at one deer breeding facility and one positive (male, 3.8 years of age) confirmed on June 15, 2021, at another deer breeding facility. The department has determined that the new SOP for SZs allows the current SZ 3 to be reduced in overall size, provided a separate SZ is created for each of the two properties in Uvalde County, which is consistent with the new SOP because deer from those facilities were not liberated to adjoining release sites and no additional positives have been detected in the current SZ surrounding those locations. Thus, the amendment essentially creates two SZs in Uvalde County. On March 10, 2023, the department received confirmation that CWD was present in a deer breeding facility in Zavala County (three buck deer approximately 2.5 years of age). On March 17, 2023, the department received confirmation that CWD was present in a deer breeding facility in Gonzales County (three female deer between the ages of 1.5 and 7.5 years of age). On March 21, 2023, the department received confirmation that CWD was present in a deer breeding facility in Hamilton County (one female deer, 3.5 years of age). On March 22, 2023, the department received confirmation that CWD was present in a deer breeding facility in Washington County (one female deer, 1.9 years of age). On April 6, 2023, the department received confirmation that CWD was present in a deer breeding facility in Frio County. The amendment establishes a SZ around each of the positive facilities (SZs 9-18, respectively).
The amendment to §65.85, concerning Mandatory Check Stations, provides for the designation of mandatory check stations for SZs at locations other than within the SZ. The current rule stipulates that the department may establish mandatory check stations in SZs. Under the new SOP for delineation of SZs, however, it could be possible for an SZ to contain no suitable public locations where the department could set up a check station. Therefore, the amendment provides for the establishment of mandatory check stations for a given SZ that are not necessarily within the SZ. The department stresses that such check stations would be sited as close to the SZ as possible and the department would undertake substantial public awareness measures as well as communication with landowners in the SZ.
The amendment to §65.88, concerning Deer Carcass Movement Restrictions, allows the head of a susceptible species taken within an SZ within which the department has not designated a mandatory check station to be transported outside of the SZ, provided such transfer is conducted immediately upon leaving the SZ where the susceptible species was taken and by the most direct route to the nearest department-designated mandatory check station. Under current rule, the head of a susceptible species taken in an SZ cannot be taken from the SZ unless accompanied by a department-issued check station receipt. The department's SOP for SZs, described earlier in this preamble, presents the possibility that the department might be unable to establish mandatory check stations within a given SZ; therefore, the amendment allows for transport in such circumstances. The amendment also prescribes acceptable methods for the disposal of heads following presentation at a check station (if the head is not being taken to a taxidermist), which consist of either 1) return to the property where the animal was harvested or 2) disposal in a landfill permitted by the Texas Commission on Environmental Quality. Because cranial and spinal tissues have the possibility of being infectious, they must be disposed of properly. Disposal at the location of harvest prevents dispersal of potentially infectious tissues to unexposed locations and landfill disposal at an accredited facility is an acceptable barrier to disease transmission.
The department received five comments opposing adoption of the rules as proposed. Of those comments, two provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that transfer of breeder deer out of a CZ should not be allowed. The department agrees with the comment and responds that the rules as proposed and as adopted do not allow the transfer of breeder deet outside of a CZ. No changes were made as a result of the comment.
One commenter opposed adoption and stated that deer breeding facilities are destroying hunting opportunity. The department disagrees with the comment and responds that in the final analysis the threat to deer populations is CWD. No changes were made as a result of the comment.
One commenter opposed adoption and stated that "CWD should be monitored to an extent and where necessary, some animals separated, quarantined and/or euthanized for the overall good of the entire Texas whitetail herd. Wholesale liquidation of herds, regulation of large areas of neighboring ranches and widescale panic is NOT the way to achieve any of your goals." The commenter further stated that "Regulating with a heavy hand without sound science or landowner cooperation is an awful and painful approach and will lead to a divide between TPWD and landowners that is unnecessary" and that "mass and unscientifically euthanizing of animals is creating panic among hunters in areas where CWD may be found." The department disagrees with the comment and responds first, that the entirety of the department's CWD management effort is aimed at protecting the state's wildlife resources from a dangerous communicable disease and represents the collaborative efforts of the department, the Texas Animal Health Commission, and numerous concerned landowners, researchers, veterinarians, and epidemiologists using the best available science. For two decades the department has conducted increasingly robust surveillance efforts to detect CWD in captive and free-ranging herds. The department notes that current Texas Animal Health Commission rules require positive facilities to be immediately placed under quarantine. The department notes that separating positive animals is not efficacious because any animal exposed to CWD directly or indirectly has the potential to contract and spread it; therefore, depopulation of breeding facilities where CWD is detected is the most effective way to prevent further spread of the disease. No changes were made as a result of the comment.
The department received 16 comments supporting adoption of the rules as proposed.
No groups or associations commented in opposition to adoption of the rules as proposed.
The Texas Deer Association, Texas Wildlife Association, Texas Chapter of the Wildlife Society, and Texas Conservation Alliance commented in favor of adoption of the proposed rules.
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; Subchapters R and R-1, which authorize the commission to establish the conditions of a deer management permit for white-tailed and mule deer, respectively; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 14, 2023.
TRD-202302164
Todd S. George
Assistant General Counsel
Texas Parks and Wildlife Department
Effective date: July 4, 2023
Proposal publication date: April 21, 2023
For further information, please call: (512) 389-4775