TPWD proposes the repeal of §§65.90 -65.94 and new §§65.90 -65.99
Concerning Chronic Wasting Disease - Movement of Deer Singeltary Comment
Submission
News Release Media Contact: TPWD News, news@tpwd.texas.gov,
512-389-8030
May 3, 2016
TPWD Taking Public Comment on Proposed Deer Movement Rules
AUSTIN — The Texas Parks and Wildlife Department (TPWD) is taking public
comment on proposed rules that would implement the department’s comprehensive
chronic wasting disease (CWD) management plan with respect to the artificial
movement of deer under TPWD permits, including Triple T (trap, transfer and
transplant), DMP (deer management permit), TTP (trap, transport and process) and
deer breeder.
Current deer movement rules (proposed for repeal) were intended to function
on a temporary basis for the 2015-16 deer season and the period immediately
thereafter. As stated in previous rulemakings and numerous press releases,
TPWD’s intent was to review the current rules following the hunting season and,
based on additional information from ongoing epidemiological investigations,
disease surveillance data collected from captive and free ranging deer herds,
guidance from the Texas Animal Health Commission (TAHC) and input from
stakeholder groups, present proposed changes to the TPW Commission at the May
25-26 commission meeting for possible adoption.
To ensure that the concerns and interests of all stakeholders were fully
understood and considered, TPWD engaged the Center for Public Policy Dispute
Resolution at the University of Texas School of Law to provide facilitation
services for the spectrum of interested groups, including landowners and land
managers, hunters, veterinarians, wildlife enthusiasts, deer breeders, TAHC and
TPWD. The facilitator’s official report is available on TPWD’s website http://tpwd.texas.gov/huntwild/wild/diseases/cwd/
.
In addition to the facilitated process, the proposed new rules are also a
result of extensive cooperation between TPWD and TAHC to protect susceptible
species of exotic and native wildlife from CWD. TAHC is the state agency
authorized to manage any disease or agent of transmission for any disease that
affects livestock, exotic livestock, domestic or exotic fowl, regardless of
whether the disease is communicable, even if the agent of transmission is an
animal species that is not subject to the jurisdiction of TAHC.
Proposed rules are available for review in the April 22, 2016 issue of the
Texas Register http://sos.state.tx.us/texreg/pdf/backview/0422/0422is.pdf
and public comment may be made online at http://tpwd.texas.gov/business/feedback/public_comment/
, in writing to TPWD Public Comment/Wildlife, 4200 Smith School Rd., Austin, TX
78744 or in person at the same address during the TPW Commission meeting on May
26 at 9 a.m.
2016-05-03
Greetings TPWD, Director Big Game Mitch Lockwood et al,
I would kindly like to comment and submit the following pertaining to the
;
TPWD proposes the repeal of §§65.90 -65.94 and new §§65.90 -65.99
Concerning Chronic Wasting Disease - Movement of Deer
MY comments follow this ;
CHAPTER 65. WILDLIFE SUBCHAPTER B. DISEASE DETECTION AND RESPONSE DIVISION
2. CHRONIC WASTING DISEASE MOVEMENT OF DEER
The Texas Parks and Wildlife Department (the Department, or TPWD) proposes
the repeal of §§65.90 -65.94 and new §§65.90 -65.99, concerning Chronic Wasting
Disease -Movement of Deer. The rules proposed for repeal were intended to
function as interim rules (Interim Deer Breeder Rules) in order to maintain
regulatory continuity for the duration of the 2015-2016 deer season and the
period immediately thereafter. As stated in previous rulemakings, the
department's intent was to review the interim rules and, based on additional
information from the ongoing epidemiological investigation, disease surveillance
data collected from captive and free-ranging deer herds, guidance from the Texas
Animal Health Commission, and input from stakeholder groups, present the results
of that review to the Parks and Wildlife Commission (Commission) in the spring
of 2016 for possible modifications.
To ensure that the concerns and interests of the regulated community were
fully understood and considered, the Department engaged the Center for Public
Policy Dispute Resolution at the University of Texas School of Law to provide
facilitation services for the spectrum of stakeholders (including deer breeders,
landowners and land managers, hunters, veterinarians, wildlife enthusiasts, the
Texas Animal Health Commission (TAHC), and the Department), the purpose of which
was to negotiate and develop a consensus concerning the essential components of
eventual regulations to comprehensively address and implement effective chronic
wasting disease (CWD) management strategies. The stakeholder group convened
three times during February and March at which time apparent consensus was
reached. The stakeholders also participated in a final phone conference on March
21. The official report of the facilitator is available on the department's
website at http://tpwd.texas.gov/huntwild/wild/diseases/cwd/.
At the March 23, 2016, meeting of the Texas Parks and Wildlife Commission
(Commission), Department staff briefed the Commission on the process and results
of the facilitation and presented a synoptic overview of the substantive
regulatory provisions being recommended for proposal by staff to address both
the consensus issues that emerged from the facilitation and additional
regulatory components necessary to operationalize consensus decisions, as well
as other regulatory components deemed necessary but on which there was no
consensus.
In addition to the facilitated process, the new rules are also a result of
extensive cooperation between the department and TAHC to protect susceptible
species of exotic and native wildlife from CWD. TAHC is the state agency
authorized to manage "any disease or agent of 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 that is not subject to the juris-diction" of TAHC. Tex. Agric.
Code §161.041(b).
Regulatory Authority
Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may
issue permits authorizing the trapping, trans-porting, and transplanting of game
animals and game birds for better wildlife management (popularly referred to as
"Triple T" permits). In addition, the department may issue permits au-thorizing
the trapping, transporting and processing of surplus white-tailed deer
(popularly referred to as TTP permits) and per-mits for the removal of urban
white-tailed deer.
Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department
regulates the possession of captive-raised deer within a facility for breeding
purposes and the release of such deer into the wild. A deer breeder permit
affords deer breeders certain privileges, such as (among other things) the
authority to buy, sell, transfer, lease, and release captive-bred white-tailed
and mule deer, subject to the regulations of the Commission and the conditions
of the permit. Breeder deer may be purchased, sold, transferred, leased, or
received only for purposes of propagation or liberation. There are currently
1,275 permitted deer breeders (operating more than 1,300 deer breeding
facilities) in Texas.
Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, and Deer
Management Permit (DMP) regulations for white-tailed deer at 31 TAC Chapter 65,
Subchapter D, the department may allow the temporary possession of free-ranging
white-tailed or mule deer for propagation within an enclosure on property
surrounded by a fence capable of retaining deer. At the current time, there are
no rules authorizing DMP activities for mule deer.
In addition the department regulations authorize the introduction of a deer
from a deer breeding facility into a DMP facility for prop-agation. Deer
breeders are permitted under Parks and Wildlife Code, Chapter 43, Subchapter L
and 31 TAC Chapter 65, Sub-chapter T.
Background Regarding 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
(susceptible species). It is clas-sified as a TSE (transmissible spongiform
encephalopathy), a family of diseases that includes scrapie (found in sheep),
bovine spongiform encephalopathy (BSE, found in cattle), and variant
Creutzfeldt-Jakob Disease (vCJD) in humans. Currently, the only test certified
by the U.S. Department of Agriculture (USDA) for CWD must be conducted
post-mortem by extracting and test-ing the obex (a structure in the brain) or
medial retropharyngeal lymph node, although the department in this rulemaking
pro-poses to allow certain ante-mortem tests to be valid.
Much remains unknown about CWD. The peculiarities of its transmission (how
it is passed from animal to animal), infection rate (the frequency of occurrence
through time or other com-parative standard), incubation period (the time from
exposure to clinical manifestation), and potential for transmission to other
species are still being investigated. There is no scientific evidence to
indicate that CWD is transmissible to humans. What is known is that CWD is
invariably fatal to cervids, and is transmitted both directly (through
deer-to-deer contact) and indirectly (through environmental contamination).
Moreover, a high prevalence of the disease correlates with deer population
PROPOSED RULES April 22, 2016 41 TexReg 2853
decline in at least one free-ranging population, and human dimensions
research suggests that hunters will avoid areas of high CWD prevalence.
Additionally, the apparent persistence of CWD in contaminated environments
represents a significant obstacle to eradication of CWD from either farmed or
free-ranging cervid populations. The potential implications of CWD for Texas and
its annual, multi-billion dollar ranching, hunting, real estate, tourism, and
wildlife management-related economies could be significant, unless it is
contained and controlled.
Discovery of CWD
The department has been concerned for over a decade about the possible
emergence of CWD in free-ranging and captive deer populations in Texas. Since
2002, more than 50,000 "not detected" CWD test results have been obtained from
free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted
approximately 20,000 "not detected" test results as well. The intent of the
proposed new rules is to reduce the probability of CWD being spread from
facilities where it might exist and to increase the probability of detecting and
containing CWD if it does exist.
On June 30, 2015, the department received confirmation that a two-year-old
white-tailed deer held in a deer breeding facility in Medina County ("index
facility") had tested positive for CWD. Under the provisions of the Agriculture
Code, §161.101(a)(6) CWD is a reportable disease and requires a veterinarian,
veterinary diagnostic laboratory, or person having care, custody, or control of
an animal to report the existence of CWD to TAHC within 24 hours after
diagnosis. Subsequent testing confirmed the presence of CWD in additional
white-tailed deer at the index facility. The source of the CWD at the index
facility is unknown at this time. Within the last five years, the index facility
accepted deer from 30 other Texas deer breeders and transferred 835 deer to 147
separate sites (including 96 deer breeding facilities, 46 release sites, and two
DMP facilities in Texas, as well as two destinations in Mexico). The department
estimates that more than 728 locations in Texas (including 384 deer breeders)
either received deer from the index facility or received deer from a deer
breeder who had received deer from the index facility. At least one of those
locations, a deer breeding facility in Lavaca County, was also confirmed to have
a CWD positive white-tailed deer acquired from the index facility.
Heightened testing requirements resulted in additional discoveries. A total
of 10 white-tailed breeder deer have now been confirmed positive at four
facilities (including the index facility). A total of four CWD positive deer
were found in the in the index facility. Three CWD positive deer that originated
from the index facility were discovered in the Lavaca County facility. A CWD
positive deer was harvested from a Medina County release site and another CWD
positive deer was sampled in the associated Uvalde County breeding facility
located on the same ranch. While the Uvalde County breeding facility is
epidemiologically linked to the index facility, neither positive deer at this
location originated from the index facility. More recently, another CWD positive
deer was reported in a Medina County deer breeding facility and a free-ranging
hunter-harvested mule deer in Hartley County was confirmed to have CWD.
Previous CWD Rulemaking
The department has engaged in several rulemakings over the years to address
the threat posed by CWD. In 2005, the department closed the Texas border to the
entry of out-of-state captive white-tailed and mule deer and increased
regulatory requirements regarding disease monitoring and record keeping. (The
closing of the Texas border to entry of out-of-state captive white-tailed and
mule deer was updated, effective in January 2010, to address other disease
threats to white-tailed and mule deer (35 TexReg 252).)
On July 10, 2012, the department confirmed that two mule deer sampled in
the Texas portion of the Hueco Mountains tested positive for CWD. In response,
the department and TAHC convened the CWD Task Force, comprised of
wildlife-health professionals and cervid producers, to advise the department on
the appropriate measures to be taken to protect white-tailed and mule deer in
Texas. Based on recommendations from the CWD Task Force, the department adopted
new rules in 2013 (37 TexReg 10231) to implement a CWD containment strategy in
far West Texas. The rules (31 TAC §§65.80 -65.88), among other things, require
deer harvested in a specific geographical area (the Containment Zone), to be
presented at check stations to be tested for CWD.
In response to the first discovery of CWD in a deer breeding facility in
Medina County, the department adopted emergency rules on August 18, 2015 (40
TexReg 5566) to address deer breeding facilities and release sites for breeder
deer. The department followed the emergency rulemaking with the "interim" rules
that are proposed for repeal as part of this rulemaking, which were published
for public comment in the October 2, 2015, issue of the Texas Register, adopted
by the Commission on November 5, 2015, and published for adoption in the January
29, 2016, issue of the Texas Register (41 TexReg 815). The department also
adopted emergency rules governing DMP and Triple T activities (effective October
5, 2015, published in the October 23, 2015, issue of the Texas Register (40
TexReg 7305, 7307) and followed with interim DMP rules published for public
comment in the December 18, 2015, issue of the Texas Register (40 TexReg 9086),
adopted by the Commission on January 21, 2016, and published for adoption in the
February 19, 2016, issue of the Texas Register (41 TexReg 1250).
Consensus Rule Components
As mentioned previously, the proposed new rules contain provisions that
represent a consensus resulting from facilitation. Early in the facilitation
process, representatives of the regulated community stated that two important
goals for the regulatory community were that new rules allow live-animal testing
and that the new rules allow for the transfer of breeder deer without requiring
testing at the release site. At a subsequent facilitation meeting, stakeholders
suggested the creation of several regulatory components, the most important of
which was the creation of four new subcategories of "TC 1" deer breeding
facilities (in the rubric of the interim rules, those facilities representing
the least amount of risk of spreading CWD), each with a different testing
regime. The proposed TC 1 testing regime would allow ante-mortem testing, and
would allow the transfer of breeder deer without requiring CWD testing at the
release site. After extended discussion and refinement over the remaining
facilitation meetings, all stakeholders agreed that the structure was suitable
for attaining the goals of both the regulated community, the other stakeholders,
and the department.
The major consensus provisions emerging from the facilitation process
are:
1. TC 1 breeding facility testing plans which require no release site
testing for recipients of breeder deer; 41 TexReg 2854 April 22, 2016 Texas
Register
2. The requirements for TC2 breeding facilities and Class II re-lease
sites;
3. The requirements for TC 3 breeding facilities and Class III release
sites;
4. Standards for valid ante-mortem testing;
5. Standards for post-mortem testing;
6. The definition for "eligible-aged deer" to provide for breeder deer 12
months and older, provided the breeding facility is en-rolled in the TAHC Herd
Certification Program;
7. The stipulation that breeding facilities and release sites that accept
breeder deer assume the lowest facility status of all orig-inating facilities;
8. The provisions allowing breeding facilities to maintain MQ authorization
or facility status by making up for missed tests;
9. The allowance of ante-mortem tests to be submitted in lieu of
post-mortem tests;
10. Stipulation that failure to test a release site make the site
ineligible for future releases;
11. Testing requirements for DMP sites;
12. Testing requirements for Triple T and TTP permits;
13. Testing requirements at Triple T release sites;
14. Tagging requirements for Class III release sites; and
15. Testing requirements and prohibitions for release sites that failed to
comply with the interim rules and release sites that fail to comply with the new
rules.
Non-consensus Rule Components
The stakeholders at the facilitation were unable to reach consen-sus on the
following:
1. The release of breeder deer to sites not surrounded by a 7-foot high
fence; which is a provision of the interim rules and which the department has
retained in the proposed new rules.
2. Standardized ear tagging requirements were a part of the stakeholder
discussions. There was no consensus on this issue nor do the proposed rules
prescribe a change to the standard for ear tagging requirements for all breeder
deer, with the exception of Class III release sites.
Description of the Rules
Definitions
Proposed new §65.90, concerning Definitions, would set forth the meanings
of specialized words and terms in order to elimi-nate ambiguity and enhance
compliance and enforcement. Proposed new §65.90(1) would define "accredited
testing facil-ity" as "a laboratory approved by the United States Department of
Agriculture to test white-tailed deer or mule deer for CWD." The definition is
necessary in order to provide a standard for testing facilities.
Proposed new §65.90(2) would define "ante-mortem" testing as "a CWD test
performed on a live deer." The definition is nec-essary because the proposed new
rules allow or require ante-mortem testing in addition to post-mortem testing.
Proposed new §65.90(3) would define "breeder deer" as "a white-tailed deer
or mule deer possessed under a permit is-sued by the department pursuant to
Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this
chapter." The definition is necessary to establish a shorthand term for a phrase
that is used frequently in the proposed new rules but cumbersome to
repeat.
Proposed new §65.90(4) would define "confirmed" as "a CWD test result of
"positive" received from the National Veterinary Service Laboratories (NVSL) of
the United States Department of Agriculture." The definition is necessary in
order to provide a definitive standard for asserting the presence of CWD in a
sample. Samples collected from breeder deer are sent initially to an accredited
testing facility, such as the Texas Veterinary Medical Diagnostic Laboratory
(TVMDL). A test result of "suspect" is returned when CWD is detected, and a
tissue sample is forwarded to the NVSL for confirmation.
Proposed new §65.90(5) would define "CWD" as "chronic wasting disease." The
definition is necessary to provide an acronym for a term that is used repeatedly
in the rules.
Proposed new §65.90(6) would define "CWD-positive facility" as "a facility
where CWD has been confirmed." The definition is necessary because the proposed
new rules contain provisions that are predicated on whether or not CWD has been
detected and confirmed in a given deer breeding, DMP, nursing, or other facility
authorized to possess white-tailed deer or mule deer.
Proposed new §65.90(7) would define "deer breeder" as "a person who holds a
valid deer breeder's permit issued pursuant to Parks and Wildlife Code, Chapter
43, Subchapter L, and Sub-chapter T of this chapter." As with several other
definitions in the proposed new rules, the definition is necessary to establish
a shorthand term for a phrase that is used frequently in the proposed new rules
but cumbersome to repeat.
Proposed new §65.90(8) would define "deer breeding facility (breeding
facility)" as "a facility permitted to hold breeder deer under a permit issued
by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L,
and Subchapter T of this chapter." As with several other definitions in the
proposed new rules, the definition is necessary to establish a shorthand term
for a phrase that is used frequently in the proposed new rules but cumbersome to
repeat.
Proposed new §65.90(9) would define "department (department)" as "Texas
Parks and Wildlife Department." The definition is necessary to avoid confusion,
since the proposed new rules contain references to another state agency.
Proposed new §65.90(10) would define "Deer Management Permit (DMP)" as "a
permit issued under the provisions of Parks and Wildlife Code, Subchapter R or
R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP))
that authorizes the temporary detention of deer for propagation purposes. The
proposed new rules would regulate certain aspects of activities conducted under
a DMP and a definition is necessary to avoid any confusion as to what is meant
by the term.
Proposed new §65.90(11) would define "eligible-aged deer" as "if the deer
is held in a breeding facility enrolled in the TAHC CWD Herd Certification
Program, 12 months of age or older or for any other deer, 16 months of age or
older." CWD is difficult to detect in deer younger than 12 months of age. The
department's previous CWD testing rules at §65.604(e) of this title provided for
testing of mortalities that were 16 months or older. The department is retaining
that standard but is also recognizing that the TAHC and USDA use a standard of
12 months.
PROPOSED RULES April 22, 2016 41 TexReg 2855
Proposed new §65.90(12) would define "eligible mortality" as "an
eligible-aged deer that has died." The proposed new rules stipulate CWD testing
requirements. As mentioned earlier, CWD is difficult to detect in younger
animals; therefore, the proposed new rules would require that all deer tested be
of eligible age.
Proposed new §65.90(13) would define "exposed deer." This definition would
replace the former definition for "Tier 1," which proved to be easily confused
with other terms such as "TC 1." The definition would provide that "unless the
department determines through an epidemiological investigation that a specific
breeder deer has not been exposed to CWD, an exposed deer is a white-tailed deer
or mule deer that is in a CWD-positive facility or was in a CWD-positive
facility within the five years preceding the confirmation of CWD in that
facility." The definition is necessary to distinguish the circumstances under
which certain provisions of the proposed new rules are applicable. The five-year
timeframe was selected because a deer infected with CWD could shed prions (the
infectious agent believed to cause CWD) and infect other animals during this
period before exhibiting clinical symptoms of the disease. However, if an
epidemiological investigation concludes that any part of the five-year window is
unnecessary, the status of "exposed" could be altered.
Proposed new §65.90(14) would define "facility" as "any location required
to be registered in TWIMS under a deer breeder permit, Triple T permit, or DMP,
including release sites and/or trap sites." The definition is necessary to
provide a shorthand term for the locations to which the proposed new rules
apply, rather than having to enumerate a cumbersome list of sites.
Proposed new §65.90(15) would define "hunter-harvested deer" as "a deer
required to be tagged under the provisions of Sub-chapter A of this chapter
(relating to Statewide Hunting Proclamation)." The definition is necessary
because the proposed rules in some instances require deer harvested by hunters
(as opposed to other types of mortality) to be tested for CWD.
Proposed new §65.90(16) would define "hunting year." Because the proposed
new rules would stipulate the testing of deer harvested by lawful hunting it is
necessary to create a term that covers hunting under the normal seasons and bag
limits established for each county by the Commission and hunting that occurs
during the period of validity of Managed Lands Deer Permits; therefore, "hunting
year" would be defined as "that period of time between September 1 and August 31
of any year when it is lawful to hunt deer under the provisions of Subchapter A
of this chapter (relating to Statewide Hunting Proclamation)."
Proposed new §65.90(17) would define "landowner (owner)" as "any person who
has an ownership interest in a tract of land, and includes a landowner's
authorized agent." The definition is necessary because the proposed new rules
set forth testing requirements and other obligations for persons who own land
where breeder deer are released.
Proposed new §65.90(18) would define "landowner's authorized agent" as "a
person designated by a landowner to act on the landowner's behalf." The
definition is necessary for the same reason set forth in the discussion of
proposed new §65.90(17).
Proposed new §65.90(19) would define "liberated deer" as "a free-ranging
deer that bears evidence of a tattoo (including partial or illegible tattooing)
or of having been eartagged at any time (holes, rips, notches, etc. in the ear
tissue)." The definition is necessary because the proposed new rules would in
certain circumstances require the testing of hunter-harvested deer that could be
identified as breeder deer that had been liberated.
Proposed new §65.90(20) would define "Movement Qualified (MQ)." Because the
proposed new rules require deer breeding facilities to maintain a minimum level
of testing over specified time period in order to be authorized by the
department to transfer breeder deer to other deer breeders or for purposes of
release, it is necessary to create a shorthand term to reference that ability.
Therefore, "Movement Qualified (MQ)" would be defined as "a designation made by
the department pursuant to this division that allows a deer breeder to lawfully
transfer breeder deer."
Proposed new §65.90(21) would define "Not Movement Qualified (NMQ)" as "a
designation made by the department pursuant to this division that prohibits the
transfer of deer by a deer breeder." Because the proposed new rules would
prohibit the movement of deer from any facility that is not MQ, a definition for
that condition is necessary.
Proposed new §65.90(22) would define "NUES tag" as "an ear tag approved by
the United States Department of Agriculture for use in the National Uniform
Eartagging System (NUES)." The definition is necessary because the proposed new
rules require certain breeder deer and Triple T deer released to a release site
to be tagged with either a RFID or NUES tag.
Proposed new §65.90(23) would define "originating facility" as "any
facility from which deer have been transported, transferred, or released, as
provided in this division or as determined by an investigation of the
department, including for breeder deer, the source facility identified on a
transfer permit and for deer being moved under a Triple T permit, the trap
site.
Proposed new §65.90(24) would define "post-mortem test" as "a CWD test
performed on a dead deer," which is necessary in order to delineate the
situations in which the proposed new rules require post-mortem testing as
opposed to ante-mortem testing.
Proposed new §65.90(25) would define "properly executed." Because the
proposed new rules would require the submission of electronic reports and forms
that provide critical information to the department, it is necessary to make
clear that all information on such a form or report must be provided. Therefore,
the proposed new rules would define "properly executed" as "a form or report
required by this division on which all required information has been entered."
Proposed new §65.90(26) would define "reconciled herd" as "the deer held in a
breeding facility for which the department has determined that the deer breeder
has accurately reported every birth, mortality, and transfer of deer in the
previous reporting year." The definition is necessary because the proposed rules
require a deer breeder to have a reconciled herd in order to transfer or release
breeder deer.
Proposed new §65.90(27) would define "release site" as "a specific tract of
land that has been approved by the department for the release of deer under this
division." The definition is necessary because the proposed new rules impose CWD
testing and other requirements for certain tracts of land where breeder deer are
liberated or transferred.
Proposed new §65.90(28) would define "reporting year" as "the period of
time from April 1 of one calendar year to March 31 of the next calendar year."
Deer breeders are required to file annual reports with the department. The
proposed new rules condition the eligibility of deer breeders to transfer and
release deer on the completeness and accuracy of those reports.
41 TexReg 2856 April 22, 2016 Texas Register
Proposed new §65.90(29) would define "RFID tag" as "a button-type ear tag
conforming to the 840 standards of the United States Department of Agriculture's
Animal Identification Number system." The definition is necessary because the
proposed new rules require certain breeder deer and Triple T deer released to
release sites to be tagged with either an RFID or NUES tag.
Proposed new §65.90(30) would define "status" as "the level of testing
required by this division for any given deer breeding facility or release site."
The definition also clarifies that the highest status for a Transfer Category is
1 and the lowest status is Transfer Category 3. Similarly, Class I is the
highest status for release sites and Class III is the lowest. As noted
previously, the proposed new rules categorize breeding facilities and release
sites based on relative risk. The definition is necessary because the proposed
new rules include regulatory requirements that are predicated upon the status of
a breeding facility or release site.
Proposed new §65.90(31) would define "submit." In order to eliminate
lengthy repetition throughout the proposed new rules, "submit" is defined as
"when used in the context of test results, provided to the department, either
directly from a deer breeder or via an accredited testing laboratory."
Proposed new §65.90(32) would define "suspect." The testing process for
determining that a deer is in fact infected with CWD is two-fold. If the initial
test on a sample indicates the presence of the disease, the sample or another
sample from the same animal is re-tested. Because the proposed new rules would
make any facility NMQ pending confirmation (i.e., the re-test), it is necessary
to create a term for the initial test result that causes the re-test. Therefore,
"suspect" would be defined as "an initial CWD test result of "detected" that has
not been confirmed."
Proposed new §65.90(33) would define "TAHC" as "Texas Animal Health
Commission."
Proposed new §65.90(34) would define "TAHC CWD Herd Certification Program"
as "the disease-testing and herd management requirements set forth in 4 TAC
§40.3 (relating to Herd Status Plans for Cervidae)." The proposed new rules have
provisions specific to deer breeders who participated in the TAHC herd
certification program. The definition makes it clear that references to herd
certification are references to the herd certification program administered by
TAHC.
Proposed new §65.90(35) would define "TAHC Herd Plan" as "a set of
requirements for disease testing and management developed by TAHC for a specific
facility." The proposed new rules in some cases make eligibility to transfer or
receive breeder deer contingent on compliance with a herd plan developed by
TAHC. The definition makes it clear that references to herd plans are references
to herd plans developed by TAHC.
Proposed new §65.90(36) would define "Test, Test Result(s), or Test
Requirement" as "a CWD test, CWD test result or CWD test requirement as provided
in this division," for the same reasons described in the explanation of the
definition for "submit."
Proposed new §65.90(37) would define "trap site" as "a specific tract of
land approved by the department for the trapping of deer under this chapter and
Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1," which is
necessary because the proposed new rules would impose testing and reporting
requirements on trap sites under various permits.
Proposed new §65.90(38) would define "Triple T permit." Because the
proposed new rules would affect certain activities conducted under Triple T
permits, the term is defined in order to eliminate any confusion. A Triple T
permit is "a permit issued under the provisions of Parks and Wildlife Code,
Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits
for Trapping, Transporting, and Transplanting Game Animals and Game Birds)." In
the context of the proposed new rules, a reference to Triple T permit is limited
to a Triple T permit for activities involving white-tailed and mule deer.
Proposed new §65.90(39) would define "Trap, Transport and Process (TTP)
permit"-as "a permit issued under the provisions of Parks and Wildlife Code,
Chapter 43, Subchapter E, and Sub-chapter C of this chapter (relating to Permits
for Trapping, Transporting, and Transplanting Game Animals and Game Birds), to
trap, transport, and process surplus white-tailed deer (TTP permit)." The
proposed definition is necessary to clarify and distinguish TTP and Triple T
permit requirements.
Proposed new §65.90(40) would define "TWIMS" as "the department's Texas
Wildlife Information Management Services (TWIMS) online application." TWIMS is
the system that all deer breeders are required to use to file required
notifications and reports required by current rule.
General Provisions
Proposed new §65.91, concerning General Provisions, would set forth a
number of provisions that are applicable to the transfer or release of
deer.
Proposed new §65.91(a) would stipulate that in the event that a provision
of the proposed new rules conflicts with any other provision of 31 TAC Chapter
65, the new rules (if adopted) would apply. In order to avoid confusion
resulting from a conflict between regulations, the proposed new rules with the
agency's existing rules governing white-tailed deer and mule deer. Therefore,
the proposed new rules would clarify that the proposed new rules govern in the
event of conflict.
Proposed new §65.91(b) would prohibit the transfer of live breeder deer or
deer trapped under a Triple T permit, TTP permit or DMP for any purpose except
as provided by the proposed new rules. Because deer breeders, landowners, and
wildlife managers frequently transfer deer under various permits, it is
necessary in light of the emergence of CWD in Texas deer breeding facilities as
well as in free-ranging deer to prohibit the movement of breeder deer except as
authorized by the proposed rules.
Proposed new §65.91(c) would prohibit the movement of deer to or from any
facility where CWD has been detected, beginning with the notification that a
"suspect" test result has been received from an accredited testing laboratory,
irrespective of how the sample was obtained or who collected the sample and
would stipulate that such prohibition would take effect immediately upon the
notification of a CWD "suspect" test result and continue in effect until the
department expressly authorizes the resumption of permitted activities at that
facility. The proposed new provision is necessary because CWD is an infectious
disease, which makes it necessary to prohibit certain activities in order to
contain the potential spread of the disease while test results are
confirmed.
Proposed new §65.91(d) would provide that a facility (including a facility
permitted after the effective date of this division) that receives breeder deer
from an originating facility of lower status automatically assumes the status
associated with the originating facility and becomes subject to the testing and
release requirements of the division at that status for a minimum of two years,
if
PROPOSED RULES April 22, 2016 41 TexReg 2857
the facility is a breeding facility, or for the period specified for
release sites in §65.95(c)(1)(D) of this title (relating to Movement of Breeder
Deer). The proposed new rules create a tiered system of testing requirements
based on the level of risk of transmission of CWD for each deer breeding
facility or release site. The level of risk is based on the degree to which the
facility has been monitored for the presence of CWD, or contains or is connected
to exposed animals. Epidemiological science dictates that a population receiving
individuals from a higher risk population is itself at greater risk; therefore,
the proposed new rules would address such transfers from higher risk to lower
risk populations by requiring the receiving facility or release site to comply
with the testing requirements associated with the originating facility, and
would stipulate a duration for the application of continued testing
requirements.
Proposed new §65.91(e) would provide that a deer breeding facility that was
initially permitted after March 31, 2016, will assume the lowest status among
all originating facilities from which deer are received. The proposed new
subsection is necessary for the same reasons addressed in the discussion of
proposed new §65.91(d).
Proposed new §65.91(f) would provide that the designation ofstatus by the
department in and of itself does not authorize thetransfer or movement of deer
and prohibit any person from re-moving or causing the removal of deer from a
facility that hasbeen designated NMQ by the department. The provision is
nec-essary because a breeding facility of any status can be desig-nated NMQ.
Proposed new §65.91(g) would require all applications, notifica-tions, and
requests for change in status required by this divi-sion shall be submitted
electronically via TWIMS or by anothermethod expressly authorized by the
department. To providegreater regulatory efficiency, it is necessary to require
the use of an automated system.
Proposed new §65.91(h) would provide that in the event that technical or
other circumstances prevent the development or implementation of automated
methods for collecting and submitting the data required by this division via
TWIMS, the department may prescribe alternative methods for collecting and
submitting the data required by this division, which is necessary to provide for
continuity of administration in the event of technical disruptions.
CWD Testing
Proposed new §65.92, concerning CWD Testing, would establish the general
provisions regarding the collection and submission of CWD test samples.
Proposed new §65.92(a) would require all CWD test samples at the time of
submission for testing to be accompanied by a properly executed,
department-prescribed form provided for that purpose. The technical response
being developed by the department would provide for the accredited laboratories
that perform CWD testing notify the department of test results electronically.
Requiring persons who submit test samples to those laboratories to use a
department-supplied form that contains data fields that can be entered by the
laboratory, the process of notification and the sharing of records is enhanced
by eliminating the need for manual data entry by the department after the test
results have been received.
Proposed new §65.92(b) would set forth the requirements for valid
ante-mortem testing, including the identification of the specific tissues that
may be used, the requirement that tissue samples be collected by a licensed
veterinarian, that the testing be done by an accredited laboratory, that samples
be submitted within six months of submission from a live deer that is at least
16 months of age, has been in the facility for at least 16 months; and has not
been the source of a "not detected" ante-mortem test result submitted within the
previous 36 months. Under the Texas Veterinary Practices Act (Occupations Code,
Chapter 801) only a licensed veterinarian is authorized to perform the
procedures that the proposed new rules would allow for purposes of meeting
ante-mortem testing requirements. Additionally, in order to be minimally
accurate and epidemiologically valuable, tissue samples must be extracted from
deer older than 16 months of age that have been in one environment long enough
to be expected to have contracted CWD if it were present (which also allows
epidemiologists to determine where the disease was acquired). Finally, the most
significant epidemiological distinction between ante-mortem testing and
post-mortem testing is that the testing of animals that have died provides a
much higher likelihood of detecting the presence of disease, since diseased
animals are more likely to die than healthy animals. In order to prevent the
repeated use of tissues from an animal that has produced "not detected" results
in the recent past, it is necessary to stipulate a minimum frequency that an
animal may be used to provide tissue samples. The department has chosen the
36-month interval because it is approximately half the amount of the known
maximum incubation period for CWD (five years). It should also be noted that
although ante-mortem testing has not yet been acknowledged as an official test
protocol by the USDA, the submission of a "suspect" ante-mortem test would cause
the subject animal to be euthanized and subjected to post-mortem testing for
confirmation.
Proposed new §65.92(c) would stipulate that ante-mortem tests submitted by
a deer breeder for purposes of attaining a higher status would have to be
collected and submitted between October 15 of one year and March 15 of the
following year. This time period was chosen because it encompasses the time
period when breeder deer are most likely to be handled by deer breeders for
other reasons (affording the opportunity to take tissue samples at convenient
times) and because it is necessary for the department to impose a "window" for
logistical and administrative purposes.
Proposed new §65.92(d) would set forth the requirements for post-mortem
testing, stipulating that a post-mortem CWD test is not valid unless it is
performed by an accredited testing laboratory on the obex of an eligible
mortality, which may be collected only by a qualified licensed veterinarian or
other person certified by TAHC to perform that procedure. The provision also
would stipulate that a medial retropharyngeal lymph node collected from the
eligible mortality by an qualified licensed veterinarian or other person
approved by the department could be submitted to an accredited testing facility
for testing in addition to or in lieu of the obex (if the obex cannot be
obtained) of the eligible mortality. Obviously, the department's efforts to
detect and contain CWD depend on the quality of the testing itself. At the
current time, USDA will not certify herd plans for cervidae unless post-mortem
CWD testing is performed by laboratories that have been approved by USDA. The
standard for approval is compliance with 9 CFR §55.8, which sets forth the
specific tests, methodology, and procedure for conducting post-mortem CWD tests.
Therefore, in order to ensure that post-mortem CWD tests are performed in
accordance with uniform standards, the proposed new rules would require all CWD
tests to be performed by
41 TexReg 2858 April 22, 2016 Texas Register
a laboratory approved by USDA. Additionally, the proposed new subsection
would specify which tissues must be submitted and who is authorized to collect
those tissues. At the current time, the only CWD testing approved by USDA must
be performed on certain tissues from eligible mortalities, such as the obex (a
structure in the brain) or certain lymph nodes. Laypersons can be trained to
remove an obex, but the successful extraction of appropriate lymph nodes
requires an experienced veterinarian, technician, or biologist. Therefore, the
proposed new subsection also stipulates that to be valid, a CWD test must be
performed on an obex, which can be collected by anyone. If a lymph node is to be
tested in addition to the obex, it must be a medial retropha-ryngeal lymph node
collected from the eligible mortality by an accredited veterinarian or other
person approved by the depart-ment.
Proposed new §65.92(e) would allow ante-mortem tests to be substituted for
required post-mortem tests at a ratio of 2:1, pro-vided at least two eligible
mortalities have occurred in the facility in the corresponding report year; and
the number of "not de- tected" post-mortem test results is equal to at least 50
percent of the total test results required have been submitted. The department
acknowledges that natural mortality is unpredictable and that therefore there
will be time periods when test results for a sufficient number of mortalities
cannot be submitted; therefore, the proposed new rule allows limited
substitution of ante-mortem tests for post-mortem tests. For reasons discussed
earlier, test results from natural mortalities have a higher epidemiological
value than ante-mortem tests and the department believes that ante-mortem
testing should not replace more than half of the total required post-mortem
testing.
Proposed new §65.92(f) would prohibit the use of a single antemortem test
result more than once to satisfy any testing requirement of the division. From
an epidemiological perspective, the use of one test result to satisfy more than
one testing requirement (especially if the submissions take place in more than
one reporting year) creates a weakness because the test result is then not
unique.
Proposed new §65.92(g) would stipulate that the testing requirements of the
division cannot be altered by the sale or subdivision of a property to a related
party if the purpose of the sale or subdivision is to avoid the requirements of
this division. The department believes that a person subject to the provisions
of the proposed new rules should not be able to avoid compliance simply by
selling, donating, or trading property to another person related to the
seller.
Proposed new §65.92(h) would provide that the owner of a release site
agrees, by consenting to the release of breeder deer on the release site, to
submit all required CWD test results to the department as soon as possible but
not later than May 1 of each year for as long as CWD testing is required at the
release site under the provisions of this division. The proposed new rules
contemplate a disease management strategy predicated on the results of CWD
testing. Incomplete, inadequate, or tardy reporting of test results confound
that strategy. For this reason, the proposed new rule would establish a date
certain for reporting test results to the department.
Harvest Log
Proposed new §65.93, concerning Harvest Log, would set forth the elements
and requirements for on-site harvest documentation. The proposed new rules
require a harvest log to be maintained on Class II and Class III release sites
and Triple T release sites. For each deer harvested from a Class II or Class III
release site for which a harvest log is required, the proposed new rules would
require the hunter's name and hunting license number (or driver's license
number, if the daily harvest log is also being used as a cold storage/processing
book) to be entered into the harvest log, along with the date of kill, type of
deer killed, any alphanumeric identifier tattooed on the deer, the tag number of
any RFID or NUES tag affixed to the deer; and any other identifier and
identifying number on the deer. The proposed new provision would enable the
department to identify all deer harvested at a given release site (including
deer that were released breeder deer) if an epidemiological investigation
becomes necessary. The proposed new paragraph also would require the daily
harvest log to be presented to any department employee acting within the scope
of official duties and for the contents of the daily harvest log to be reported
to the department via TWIMS by no later than April 1 of each year, and would
also provide for the format and retention of the harvest.
Breeding Facility Minimum Movement Qualification
Proposed new §65.94, concerning Breeding Facility Minimum Movement
Qualification, would set forth the testing requirements necessary for a breeding
facility to be able to transfer deer to other deer breeders or for purposes of
release. The proposed new provision would cause any breeding facility to be NMQ
(prohibited from transferring breeder deer anywhere for any purpose) if the
breeding facility was not in compliance with MQ requirements in effect prior to
the new rules, if the breeding facility is not in compliance with the testing
requirements of the new rules as of their effective date and moving forward, if
the facility is prohibited from transferring deer by order of TAHC, if the
facility does not have a reconciled herd inventory, or if the facility was not
in compliance with reporting and recordkeeping requirements. Among the
requirements for achieving the movement qualification standard in proposed new
§65.94(a) is a requirement to submit CWD "not detected" test results for at
least 50% of eligible mortalities occurring in the facility during each
reporting year beginning April 1, 2016. However, the department recognizes that
if a breeding facility has unusually low eligible mortalities, this provision
would result in the submission of very few test results. Therefore a provision
is included to require that beginning April 1, 2021, the number of "not
detected" test results submitted during the previous five consecutive years must
be equal to or greater than the sum of the eligible-aged population in the
breeding facility at the end of each of the previous five consecutive reporting
years, plus the sum of the eligible mortalities that occurred within the
breeding facility for each of the previous five consecutive reporting years,
multiplied by 2.25 percent. This provision is intended to provide a minimum
number of tests that must be submitted in a five-year period. To develop this
number, the department considered that the average natural mortality in a deer
breeding facility is 4.5 percent of the eligible-aged deer population in the
breeding facility each year. Therefore, if a deer breeding facility with an
average natural mortality rate among eligible-aged deer and tested 50% of those
mortalities, the breeding facility would test 2.25 percent (i.e., 50% of 4.5%)
of the eligible-aged population each year. In order to calculate this number
over a five-year period, the eligible-aged population of the breeding facility
(the eligible-aged population of the breeding facility plus eligible-aged
mortalities) for each of the previous five years is added together. That number
is multiplied by 2.25 percent. The resulting number is 50 percent of the average
eligible-aged mortality for a deer breeding facility over a five-year
period.
PROPOSED RULES April 22, 2016 41 TexReg 2859
Proposed new §65.94(b) would provide that a breeding facility that has been
designated as NMQ for failure to comply with testing requirements would be
restored to MQ when sufficient "not detected" test results are submitted. The
department has determined that once a breeding facility is compliant with
applicable testing requirements, MQ authority should be restored, so long as the
other requirements being MQ are met.
Proposed new §65.94(c) would require a facility designated NMQ to report
all mortalities within the facility to the department immediately upon
discovery. From an epidemiological perspective, once a breeding facility cannot
provide the minimum assurance that adequate disease surveillance is being
maintained, there is an increased risk that if CWD is present it could be
spread. Therefore, the proposed new rule requires noncompliant facilities to
report all mortalities immediately, rather than at the end of the reporting
year.
Proposed new §65.94(d) would require that immediately upon the notification
that a facility has received a "suspect" test result, all facilities that
received deer from or provided deer to the suspect facility within the previous
five years would be designated NMQ until a determination that the facility is
not epidemiologically linked to the suspect deer or upon further testing the
"suspect" deer is determined not to be positive. The proposed new rules are
intended to detect CWD if it is present and prevent the spread of CWD once it is
detected; therefore, the department has determined that it is prudent, once a
"suspect" test result has been returned, to stop all movement to and from all
connected facilities until the "suspect" test is either confirmed or determined
to be non-positive.
Movement of Breeder Deer
Proposed new §65.95, concerning Movement of Deer, would establish the
various status levels and attendant testing requirements for breeding facilities
and release sites.
Proposed new §65.95(a) would allow a TC 1 or TC 2 breeding facility
designated MQ and in compliance with the applicable provisions of the divisions
to transfer breeder deer under existing rules to another breeding facility, an
approved release site, a DMP facility, or to another person for nursing
purposes.
Proposed new §65.95(b) would establish three categories of breeder
facilities based on level of epidemiological risk. The TC 1 category represents
the lowest risk of transmitting CWD, based on the provenance of the deer within
the facility and the testing regimen performed at the facility on annual and
five-year time periods. The proposed new rule would establish TC 1 status for
breeding facilities that have "fifth-year" or "certified" status in the TAHC CWD
Herd Certification Program. The proposed new rule would also establish TC 1
status for breeding facilities that have submitted "not detected" post-mortem
test results equivalent to one the following testing regimes (discussed in
greater detail later in this preamble: 1) results equivalent to at least 80
percent of the total number of eligible mortalities that occurred in the
breeding facility in each reporting year of the immediately preceding five-year
period and each year thereafter, as well as a five-year record of minimum
post-mortem testing based on the facility population; 2) ante-mortem tests of at
least 80 percent of eligible-aged deer in the facility's inventory at the time
the testing is conducted and post-mortem tests of at least 80 percent of all
eligible mortalities during each reporting year thereafter, as well as a
five-year record of minimum post-mortem testing based on the facility
population; or 3) annual ante-mortem tests of at least 25 percent of
eligible-aged deer in the facility's inventory at the time the testing is
conducted and annual post-mortem tests of at least 50 percent of eligible
mortalities. These categories were developed during the facilitation effort
discussed earlier in this preamble. The department is confident that the testing
requirements provide an increased potential to detect and contain CWD compared
to the interim rules.
Among the options provided in proposed new §65.95(b) for obtaining TC 1
status is an option to test at least 80 percent of the total number of eligible
mortalities that occurred in the breeding facility in each reporting year of the
immediately preceding five-year period and each year thereafter. Another option
is to conduct ante-mortem tests of at least 80 percent of eligible-aged deer in
the facility's inventory at the time the testing is conducted and post-mortem
tests of at least 80 percent of all eligible mortalities during each reporting
year thereafter. For both of those options, the department recognizes that if a
breeding facility has an unusually low number of eligible mortalities, the
requirement to submit post-mortem tests for 80 percent of all eligible
mortalities during year could result in a lower number of post-mortem tests.
Therefore, both provisions contain a minimum number of post-mortem tests to be
submitted over a five-year period. That number is calculated as the sum of the
eligible-aged population in the breeding facility at the end of each of five
consecutive reporting years, plus the sum of the eligible mortalities that have
occurred within the breeding facility for each of the five consecutive years,
multiplied by 3.6 percent. To develop this number, the department considered
that the average natural mortality in a deer breeding facility is 4.5 percent of
the eligible-aged deer population in the breeding facility each year. Therefore,
if a deer breeding facility with an average number of natural mortalities among
eligible-aged deer and tested 80% of those mortalities, the breeding facility
would test 3.6 percent (i.e., 80% of 4.5%) of the eligible-aged population each
year. In order to calculate this number over a five-year period, the
eligible-aged population of the breeding facility (the eligible-aged population
of the breeding facility plus eligible-aged mortalities) for each of the
previous five years is added together. That number is multiplied by 3.6 percent.
The resulting number is 80 percent of the average eligible-aged mortality for a
deer breeding facility over a five-year period.
Proposed new §65.95(b) also would stipulate consequences for breeding
facilities that have failed to comply with the testing requirements for TC 1
breeding facilities, providing for reduction in status to TC 2, provisions for
re-attaining TC 1 status if testing compliance is achieved within 60 days of
being reduced in status, the stipulation of a minimum time period of two years
at TC 2 status if TC 1 status is not re-attained within 60 days, and a provision
for ineligibility to regain TC 1 status if breeder deer from a lower status
facility are accepted during the 60-day re-attainment period. The department
believes that failure to comply with testing requirements is problematic from an
epidemiological point of view and should result in demotion to a lower status,
but recognizes that it is not necessarily possible to observe or locate
mortalities in a timely manner; therefore, the proposed new rules would offer a
limited time period for delinquent facilities to "catch up" before being reduced
in status for a two-year period. Proposed new §65.95(b)(2) would establish
testing requirements for TC 2 breeding facilities, which would be the minimum
testing requirements for MQ status stipulated in §65.94, relating to Breeding
Facility Minimum Movement Qualification. A TC 2 breeding facility is a facility
that is neither a TC 1 breeding facility nor a TC 3 facility.
41 TexReg 2860 April 22, 2016 Texas Register
Proposed new §65.95(b)(2) also would establish provisions regarding
classification and requirements for TC 3 breeding facilities. A TC 3 facility is
any breeding facility registered in TWIMS that is under a TAHC hold order and/or
herd plan and received an exposed deer within the previous five years,
transferred deer to a CWD-positive facility within the five-year period
preceding the confirmation of CWD in the CWD-positive facility, or possessed a
deer that was in a CWD-positive facility within the previous five years. As
such, TC 3 breeder facilities are the facilities with the highest risk of
harboring and spreading CWD. Therefore, the proposed new rule prohibits the
transfer of deer from any TC 3 facility unless such transfer is expressly
authorized in a TAHC herd plan and then only in accordance with the provisions
of this division and the TAHC herd plan, and requires all transferred deer to be
tagged in one ear with a NUES tag or button-type RFID tag approved by the
department.
Proposed new §65.95(c) would set forth provisions governing release
sites.
Proposed new §65.95(c)(1) would provide that an approved release site
consists solely of the specific tract of land to which deer are released and the
acreage designated as a release site in TWIMS, require that liberated breeder
deer have complete, unrestricted access to the entirety of the release site, and
stipulate that all release sites onto which breeder deer are liberated be
surrounded by a fence of at least seven feet in height that is capable of
retaining deer at all times (and make the owner of the release site responsible
for ensuring that the fence and associated infrastructure retain deer). In order
to provide a measure of confidence that CWD is not spread from those places
where breeder deer are released, it is necessary to identify the specific
location where breeder deer are authorized to be released. Similarly, it is
necessary to establish a level of vigilance sufficient to give reasonable
assurance that breeder deer are not allowed to leave the specific premise where
they were released. It is also necessary to ensure that released deer are not
confined in smaller enclosures within a permitted release site, which have the
effect of creating unnatural densities that could encourage the spread of
disease if present.
Proposed new §65.95(c)(1) also would provide that any testing requirements
of the division continue in effect until "not detected" test results are
submitted for five consecutive hunting years following the last date on which
breeder deer were liberated on the release site, that a release site not in
compliance with the testing requirements of this subsection is ineligible to
receive deer, prohibit any intentional act that allows any live deer to leave or
escape from a release site, and require a harvest log to be maintained. In
addition, the owner of a Class II or Class III release site would be required to
maintain a harvest log. The proposed new rule would establish that a Class I
release site is a release site that has received deer only from TC 1 facilities
and is in compliance with the applicable provisions of the division. On that
basis, Class I release sites represent the lowest risk of harboring or spreading
CWD and are therefore not required to perform CWD testing. A Class II release
site is a release site that receives deer from a TC 2 breeding facility (but not
a breeding facility of lower status). The proposed new rule would require that
for each year a Class II release site receives deer from any TC 2 breeding
facility, the owner of the release site must, for a period of five consecutive
hunting years immediately following the release, submit "not detected"
post-mortem test results for 50 percent of liberated deer that are harvested at
the release site or, if no liberated deer are harvested at the release site in
any hunting year, 50 percent of hunter-harvested deer. Because a Class II
release site receives breeder deer that represent a higher risk of harboring and
spreading CWD than breeder deer from a TC 1 facility, the department has
determined that some level of testing is prudent. The 50 percent value for
hunter-harvested deer provides an additional level of surveillance from an
epidemiological perspective, as does the alternative of testing 50 percent of
liberated deer (deer that were previously breeder deer). The five-year period
for testing represents the approximate time period during which CWD could be
expected to be detected. The proposed new rule would also provide that once the
testing requirements have been met, the site becomes a Class I release site (no
testing required).
Finally, proposed new §65.95 would provide that a Class III release site is
any release site that has received deer from an originating facility that is a
TC 3 facility, received an exposed deer within the previous five years,
transferred deer to a CWD-positive facility within the five-year period
preceding the confirmation of CWD in the CWD-positive facility, and has not been
released from a TAHC hold order. The proposed new rule would require the
landowner of a Class III release site to submit post-mortem CWD test results for
100 percent of all hunter-harvested deer or one hunter-harvested deer per
liberated deer released on the release site between the last day of lawful
hunting on the release in the previous hunting year and the last day of lawful
hunting on the release site during the current hunting year, whichever is
greater and condition the minimum harvest and testing provision on terms
prescribed in a TAHC herd plan. The proposed new rule also would prohibit the
transfer of a breeder deer to a Class III release site unless the deer has been
tagged in one ear with a NUES tag or button-type RFID tag.
Movement of DMP Deer
Proposed new §65.96, concerning Movement of DMP Deer, would set forth the
movement and testing requirements associated with DMP activities. The proposed
new rule would require a DMP release site to which breeder deer from a TC 2
breeding facility are released, or if the DMP property from which deer are
trapped for DMP purposes is a Class II release site, to submit "not detected"
test results equivalent to 50 percent of the number of hunter-harvested deer in
each hunting year for five consecutive hunting years, beginning with the hunting
year immediately following the liberation. As discussed elsewhere in this
preamble, a TC 2 breeding facility or Class II release site represents a higher
risk of transmitting CWD than a TC 1 breeding facility or Class I release site;
therefore some level of testing is appropriate. The department has determined
that testing half the hunter-harvested deer each year for five years (the
approximate time period during which CWD could be expected to be detected)
provides a reasonable assurance that CWD would be detected if it were present.
The proposed new rule would prohibit the transfer of deer from a TC 3 breeding
facility to a DMP facility because breeder deer in a TC 3 breeding facility are
presumed to be exposed and therefore present an unacceptable risk of spreading
CWD to free-ranging populations. The proposed rules would not impose testing
requirements on any DMP facility that either does not receive breeder deer or
receives breeder deer solely from TC 1 deer breeding facilities.
Testing and Movement of Deer Pursuant to a Triple T or TTP Permit
Proposed new §65.97, concerning Testing and Movement of Deer Pursuant to a
Triple T or TTP Permit, would set forth
PROPOSED RULES April 22, 2016 41 TexReg 2861
general provisions and testing requirements applicable to the movement of
deer under a Triple T or TTP permit.
Proposed new §65.97(a) would stipulate that the disease detection
provisions of §65.102 cease effect upon the effective date of the proposed new
section, if adopted. This is necessary to prevent regulatory conflict.
Proposed new §65.97(a) also would provide that the department may require a
map of any prospective Triple T trap site to be submitted as part of the
application process, which is necessary to address situations in which the exact
nature of a prospective Triple T site and its relationship to nearby or
adjoining tracts of land is unclear with respect to previous releases.
Proposed new §65.97(a) would further enumerate the criteria under which the
department will not authorize deer to be trapped at a specific site, including a
release site that has received breeder deer within five years of the application
for a Triple T permit, a release site that has failed to fulfill testing
requirements, any site where a deer has been confirmed positive for CWD, any
site where a deer has tested "suspect" for CWD, or any site under a TAHC hold
order. Further, proposed §65.97(a) would provide that in addition to the reasons
for denying a Triple T permit listed in §65.103(c) (concerning Trap, Transport,
and Transplant Permit), the department will not issue Triple T permit if the
department determines, based on epidemiological assessment and consultation with
TAHC that to do so would create an unacceptable risk for the spread of CWD. Each
of the enumerated criteria for permit refusal represents an unacceptable risk of
spreading CWD to free-ranging populations.
In addition, proposed new §65.97(a) would require all Triple deer to be
tagged prior to release in one ear with a button-type RFID tag approved by the
department and for the RFID tag information to be submitted to the department.
The proposed new provision would enable the department to identify all deer
harvested at a given release site (including deer that were released breeder
deer) if an epidemiological investigation becomes necessary.
Proposed new §65.97(a) would further stipulate that a Triple T permit does
not authorize the take of deer except as authorized by applicable laws and
regulations, including but not limited to laws and regulations regarding
seasons, bag limits, and means and methods as provided in Subchapter A of this
chapter (relating to Statewide Hunting Proclamation), which is necessary to
ensure that all deer are harvested by hunters under the regulations established
for lawful hunting.
Proposed new §65.97(a) also would require all test samples to be collected
or tested after the Saturday closest to September 30 (the first day of lawful
hunting in any year), which is necessary to ensure that test samples are
temporally linked to the year for which activities of the permit are authorized;
however, this requirement would not apply to permits issued for the removal of
urban deer, for which test samples could be collected between April 1 and the
time of application.
Additional provisions of proposed new §65.97(a) include a harvest log
requirement, the stipulation that a Triple T release site consist solely of the
specific tract of land to which deer are released and the acreage designated as
a release site in TWIMS, the requirement that deer released pursuant to a Triple
T permit must have complete, unrestricted access to the entirety of the release
site, the requirement that the testing requirements of the section continue in
effect until "not detected" test results have been submitted for five
consecutive hunting years following the last date on which deer were released,
and the provision that a Triple T release site that does not comply with the
testing requirements of the subsection becomes ineligible to be a release site
in the future.
Proposed new §65.97(b) would establish the testing requirements for Triple
T trap and release sites. At the trap site, the proposed new rule would require
15 "not detected" post-mortem test results to be submitted prior to permit
issuance. For release sites, the proposed new provision would require the
landowner of a Triple T release site to submit "not detected" post-mortem test
results for a period of five consecutive hunting years immediately following the
release for either 50 percent of liberated deer that are harvested at the Triple
T release site, or if no liberated deer are harvested at the Triple T release
site in any hunting year, 50 percent of hunter-harvested deer.
Proposed new §65.97(b) also would stipulate that CWD testing is not
required for deer trapped on any property if the deer are being moved to
adjacent, contiguous tracts owned by the same person who owns the trap site
property.
Proposed new §65.97(c) would set forth the testing requirements for TTP
permits. The proposed new provision would require "not detected" test results
for at least 15 eligible-aged deer from the trap site to submitted and would
require the landowner of a Class III release site where TTP deer are trapped to
submit CWD test results for 100% of the deer trapped. The proposed new rule also
would require test results related to a TTP permit to be submitted to the
department by the method prescribed by the department by the May 1 immediately
following the completion of permit ac-tivities.
Transition Provisions
Proposed new §65.98, concerning Transition Provisions, would set forth
provisions to clarify enforcement of regulations with respect to the effective
dates of various provisions and would stipulate that the department's executive
director develop a transition plan and issue appropriate guidance documents to
facilitate an effective transition to this division from previously applicable
regulations.
Violations and Penalties
Proposed new §65.99, concerning Violations and Penalties, would prescribe
the penalties and sanctions for violations of a condition of a permit or a
provision of the division.
Clayton Wolf, Wildlife Division Director, has determined that for each of
the first five years that the rules as proposed are in effect, there will
initially be no fiscal implications to state and local governments as a result
of enforcing or administering the rules as proposed, as department personnel
currently allocated to the administration and enforcement of the permit programs
affected will administer and enforce the rules as part of their current job
duties and resources already in place will be reallocated for purposes of
program administration, primarily to address programming costs. However, if
administering the program following the initial transition requires continued
reallocation of staff and resources, there may be a need for additional
personnel to assist in administering the program.
Mr. Wolf also has determined that for each of the first five years the new
rules as proposed are in effect, the public benefit anticipated as a result of
enforcing or administering the rules as proposed will be a reduction of the
probability of CWD being spread from facilities where it might exist and an
increase in the probability of detecting CWD if it does exist, thus ensuring the
public of continued enjoyment of the resource and also ensuring the
41 TexReg 2862 April 22, 2016 Texas Register
continued beneficial economic impacts of hunting in Texas. Additionally,
the protection of free-ranging deer herds will have the simultaneous collateral
benefit of protecting captive herds, and maintaining the economic viability of
deer breeding operations.
There will be adverse economic impact on persons required to comply with
the rules as proposed. For deer breeders, those impacts are the same as the
adverse economic impacts to small and micro-businesses, which are addressed
later in this preamble.
For persons who obtain breeder deer for purposes of release (including
under a DMP permit) or trap free-ranging deer under a Triple T or TTP permit,
the adverse economic impacts of the proposed new rules consist of the CWD
testing requirements that the proposed new rules would impose, based on the
source and history of the deer being released.
The current cost of a CWD test administered by the Texas Veterinary
Medicine Diagnostic Lab (TVMDL) is a minimum of $46, to which is added a $6
submission fee (which may cover multiple samples submitted at the same time). If
a whole head is submitted to TVDML there is an additional $20 sample collection
fee, plus a $20 disposal fee. Thus, the fee for submitting an obex or
obex/medial retropharyngeal lymph node pair would be $52, plus any veterinary
cost (which the department cannot quantify) and the fee for submitting an entire
head for testing would be $92. Therefore, for any Class II or Class III release
site owner, the cost of compliance with the testing requirements of the proposed
new rules would be approximately $92 per animal required to be tested.
There are no adverse economic impacts for persons who obtain and release
breeder deer from solely from TC 1 breeding facilities because under the rules
as proposed, a release site that receives breeder deer only from TC 1 facilities
is a Class I release site and no CWD testing is required.
For persons who obtain breeder deer from TC 2 breeding facilities or
facilities of higher status (making the release site a Class II release site),
the proposed new rules would require the landowner to test either 50 percent of
the liberated deer (deer that were ever held under a deer breeder permit)
harvested by hunters or, if no liberated deer are harvested, 50 percent of the
deer harvested by hunters. Thus, the adverse economic impacts would be a
function of the number and type of deer harvested, which could be as low as the
cost of testing one deer (i.e., if only two liberated deer were part of the
harvest, one would have to be tested and the testing requirement would be
met).
For Class III release sites, the proposed new rules would require the
landowner to test 100% of hunter-harvested deer. Therefore, the cost of
compliance would be the cost of a CWD test for every deer harvested.
Historically there have been liberations of up to 175 deer; however, the vast
majority of releases involve fewer than 10 deer.
For a person trapping deer under a Triple T or TTP permit, the adverse
economic impact would be would be the cost of complying with the requirement to
submit 15 valid CWD test results of "not detected" to the department prior to
permit issuance.
The proposed new rules will result in adverse economic impacts to
landowners of Class II and Class III release sites, who would be required to
comply with certain testing requirements. Only those landowners who receive
breeder deer from TC 2 and/or TC 3 breeding facility would be subject to the
testing requirements imposed by the proposed rules.
For a Class II release site, if deer are hunter-harvested, a number of deer
equivalent to 50 percent of the number of liberated breeder deer that are
harvested at the site or 50 percent of all hunter-harvested deer if not
liberated deer are harvested.
For a Class III release site, the proposed new rules would require 100
percent of all hunter-harvested deer to be tested or one hunter-harvested deer
per breeder deer released between the last day of lawful deer hunting at the
site in the previous year and the last day of lawful deer hunting at the site in
the current year.
Also, because the proposed new rules require all release sites for breeder
deer to be enclosed by a fence of at least seven feet in height, a landowner
desiring to have breeder deer released on a tract that is not surrounded by such
a fence would incur the cost of building one. The cost of fence construction
varies by terrain and region, but anecdotal information suggests that it is
$10,000 per linear mile or more. The department notes that only 610 breeder deer
were released to low-fence environments in 2014 (the last year that such
releases were allowed), and that the practice is extremely rare because the
breeder deer purchased for liberation represent a significant purchase cost and
once they are released they become free-ranging deer and may be legally killed
on an adjoining property should they wander from the release site.
Small and Micro-business Impact Analysis
Under the provisions of Government Code, Chapter 2006, a state agency must
prepare an economic impact statement and a regulatory flexibility analysis for a
rule that may have an adverse economic effect on small businesses and
micro-businesses. As required by Government Code, §2006.002(g), in April 2008,
the Office of the Attorney General issued guidelines to assist state agencies in
determining a proposed rule's potential adverse economic impact on small
businesses. These guidelines state that "[g]enerally, there is no need to
examine the indirect effects of a proposed rule on entities outside of an
agency's regulatory jurisdiction." The guidelines state that an agency need only
consider a proposed rule's "direct adverse economic impacts" to small businesses
and micro-businesses to determine if any further analysis is required. The
guidelines also list examples of the types of costs that may result in a "direct
economic impact." Such costs may include costs associated with additional
record-keeping or reporting requirements; new taxes or fees; lost sales or
profits; changes in market competition; or the need to purchase or modify
equipment or services.
Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder
permit has been issued to "engage in the business of breeding breeder deer in
the immediate locality for which the permit was issued" and to "sell, transfer
to another person, or hold in captivity live breeder deer for the purpose of
propagation." As a result, deer breeders are authorized to engage in business
activities; namely, the purchase and sale of breeder deer. The same is not true
of DMP or Triple T permit holders, who are authorized only to trap, temporarily
detain, and release deer and are not authorized by those permits to buy or sell
deer, or to exchange deer for anything of value.
Government Code, §2006.001(1), defines a small or micro-business as a legal
entity "formed for the purpose of making a profit" and "independently owned and
operated." A micro-business is a business with 20 or fewer employees. A small
business is defined as a business with fewer than 100 employees, or less than $6
million in annual gross receipts. Although the department
PROPOSED RULES April 22, 2016 41 TexReg 2863
does not require deer breeders to file financial information with the
department, the department believes that most if not all deer breeders would
qualify as a small or micro-business. Since the rules as proposed would impact
the ability of a deer breeder to engage in certain activities undertaken to
generate a profit, the proposed rules may have an adverse impact on deer
breeders.
Impact on Sales
The variety of business models utilized by deer breeders makes meaningful
estimates of potential adverse economic impacts dif-ficult. Although a deer
breeder has the permit privilege to buy and sell breeder deer and many deer
breeders participate in a market for breeder deer, other deer breeders are
interested only in breeding and liberating deer on their own property to provide
hunting opportunity. Once a breeder deer is liberated, it cannot be returned to
a breeding facility and assumes the same legal status as all other free-ranging
deer. Thus, if a person who is a deer breeder is engaged primarily in buying and
selling deer, the potential adverse economic impact is greater than that for a
deer breeder who engages in deer breeding activities primarily for purposes of
release onto that person's property. The department does not require deer
breeders to report the buying or selling prices of deer. However, publicly
available and anecdotal information indicates that sale prices, especially for
buck deer, may be significant. The sale price for a single deer may range from
hundreds of dollars to many thousands of dollars.
It should also be noted that some aspects of this analysis are based on
anticipated marketplace behavior which cannot be accurately predicted. In
addition, to the extent that any marketplace analysis can be conducted, it is
difficult, if not impossible, to accurately separate and distinguish marketplace
behavior that is the result of the proposed new rules from marketplace behavior
that is the result of the discovery of CWD. For reasons unrelated to the
proposed new rules, it is possible, perhaps even likely, that breeders and
release site owners will be reluctant to purchase a breeder deer from a facility
with a close relationship to a facility at which CWD has been detected.
The proposed new rules would not completely prohibit the transfer of deer
except facilities that are not movement qualified or TC 3 facilities that are
not otherwise authorized to transfer deer pursuant to a TAHC herd plan (in
addition to facilities that were not allowed to transfer deer under previous
regulations due to failure to test a minimum number of deer or failure to comply
with record-keeping requirements). All TC 1 and TC 2 facilities would be allowed
to transfer deer, provided certain conditions are met.
For TC 1 facilities, the department has determined that there will likely
be no adverse economic impact on sales as a result of the proposed new rules.
Since transfers of breeder deer from TC 1 facilities are subject to the fewest
restrictions under the proposed new rules, breeder deer from a TC 1 facility can
more easily be sold to other breeders or to landowners for purposes of
liberation. In addition, TC 1 facilities are subject to monitoring and testing
at a higher level. Since classification as a TC 1 facility requires certain
actions by deer breeders as provided in the proposed rules, the Department
cannot accurately identify the number of deer breeders willing to undertake the
obligations required to be classified as a TC 1 facility. One category of TC 1
facilities are facilities with "fifth" year or "certified" status in the TAHC
CWD Herd Certification Program.
For TC 2 and TC 3 facilities, the adverse economic impact of the proposed
new rules would consist of testing costs and the possible loss of sales to TC 1
facilities and Class I release sites. The proposed new rules would not prohibit
the transfer of breeder deer by TC 2 facilities, but because the proposed new
rules would cause any TC 1 facility or Class I release site that accepts deer
from a TC 2 (or TC 3) facility to assume the status (and regulatory obligations,
such as testing) of the TC 2 (or TC 3) facility, and because TC 2 facilities
carry a greater risk of exposure to CWD, it can be assumed that TC 1 facilities
or Class I release sites will be less likely destinations for breeder deer
coming from facilities of lower status. Historically there have been liberations
of up to 175 deer; however, the vast majority of releases involve fewer than 10
deer.
As noted above, since the proposed rules would provide a mechanism for more
breeder facilities to be classified as a TC 1 facility, many facilities
classified as TC 2 under the Interim Rules may elect to undertake the
requirements of the proposed rule necessary to attain TC 1 status. Since such
decisions are personal and business decisions to be made by each breeder, the
Department cannot accurately identify the number of deer breeders willing to
undertake the obligations required to be classified as a TC 1 facility.
As noted above, if a release site is unwilling to obtain deer from a TC 2
facility, the impact of the proposed rules to a TC 2 deer breeder would be the
loss of sales and any attendant profit from the sale of deer. Similarly, a TC 1
facility that acquires a breeder deer from a TC 2 facility would assume the
lower TC 2 status. As previously mentioned in this analysis, the department does
not require holders of deer breeder permits to disclose the dollar values of
sales and purchases of breeder deer; therefore, an exact quantification of the
possible impact of the proposed new rules on TC 2 facilities cannot be
accurately calculated. However, based on public and anecdotal information, such
impact could be from few hundred dollars or less per deer or to thousands of
dollars per deer.
The proposed new rules would prohibit the introduction to or removal of
deer from TC 3 breeder facilities unless authorized by a TAHC herd plan and then
only in compliance with the requirements of this division. TC 3 facilities are
breeder facilities that received an exposed deer within the previous five years,
transferred deer to a CWD-positive facility within the five-year period
preceding the confirmation of CWD in the CWD-positive facility; or possessed a
deer that was in a CWD-positive facility within the previous five years. The
proposed rules would result in an adverse economic impact to deer breeders whose
facilities are TC 3 facilities. The extent of such adverse economic impact would
consist of loss of revenue as a result of being unable to introduce or remove
deer from the breeding facility and thus being unable to deliver or accept deer
that have been bought or sold. The dollar value of the adverse economic impact
is dependent on the volume of deer produced or acquired by any given permittee,
which can vary from a few deer to hundreds of deer. However, as noted above, it
is difficult, if not impossible, to accurately determine whether and how much
any adverse economic impact is due to the presence of CWD in a facility (or a
related facility) or attributable to the proposed new rules. Department records
indicate that there are currently 304 TC 3 facilities in the state; if the
proposed new rules are adopted, that number will be less than 100. The
department notes that with the exception of breeding facilities that are
CWD-positive, the proposed new rules allow "exposed" facilities (which would be
classified as TC 3 facilities) to transfer breeder deer following successful
compliance with the testing and other provisions of the proposed new
rules.
Testing Costs
41 TexReg 2864 April 22, 2016 Texas Register
The proposed new rules would cause an adverse economic impact to deer
breeders who must undertake disease-testing requirements to continue certain
activities. As a result, deer breeders and owners of release sites that are not
Class I release sites would incur costs related to the increased testing and
monitoring requirements of the proposed new rules.
The cost of a CWD testing administered by the Texas Veterinary Medicine
Diagnostic Lab (TVMDL) on a sample collected and submitted by a deer breeder is
a minimum of $46, to which is added a $6 submission fee (which may cover
multiple samples submitted at the same time). If a whole head is submitted to
TVDML there is an additional $20 sample collection fee, plus a $20 disposal fee.
Thus, the fee for submitting an obex or obex/medial retropharyngeal lymph node
pair would be $52, plus any veterinary cost (which the department cannot
quantify) and the fee for submitting an entire head for testing would be
$92.
A significant factor that differentiates the proposed new rules from the
interim rules is that the proposed new rules either require or allow ante-mortem
(live animal) tests for CWD to be submitted by deer breeders seeking to maintain
or increase status. Under the Veterinary Practice Act, the samples necessary for
ante-mortem testing can only be obtained a licensed veterinarian. Because
veterinary practice models vary significantly (flat rates, graduated rates,
included travel costs, herd call rates, sedation costs, etc.) in addition to
pricing structures determined by the presence or absence of economic competition
in different parts of the state, the cost of ante-mortem testing is difficult to
quantify; however, based on anecdotal information and an informal survey of
knowledgeable veterinarians, the department estimates the cost of tonsillar or
rectal biopsies at approximately $30-70 per head and the cost of ante-mortem
lymph node biopsies at approximately $700 per head (these costs are in addition
to the estimated $92 lab fee per sample for the actual CWD test). It is
important to note that ante-mortem procedures for CWD testing are very new and
at the current time there are very few veterinarians with the training and
expertise to perform them reliably; thus, the fee structure for such procedures
can best be described as still evolving.
Additionally, deer breeders who seek "certified" or "fifth year" facilities
are also required to obtain an annual inventory by an accredited veterinarian.
The cost of an annual inventory by an accredited veterinarian is estimated by
TAHC to be approximately $250. However, it should be noted that the requirements
for obtaining "certified" or "fifth year" status are not imposed by the proposed
rules, but rather by existing TAHC regulations.
The department notes that because CWD has been proven to be transmissible
by direct contact (including through fences) and via environmental
contamination, there may be adverse economic impacts unrelated to the proposed
new rules in the event that CWD is confirmed in a breeding facility due to the
possible reluctance of potential customers to purchase deer from a facility that
accepted deer from a CWD-positive facility. Additionally, in the absence of the
proposed new rules, if CWD is detected within a facility or breeder deer that
have been in a facility that accepted deer from a CWD-positive facility, there
could be lost revenue to the permittee since potential purchasers who are aware
of CWD would likely refrain from purchasing deer from such a facility.
Therefore, the proposed new rules, by providing a mechanism to minimize the
spread of CWD, could also protect the economic interests of the regulated
community.
The department also notes that for any given deer breeder that is currently
not qualified to move or release deer, compliance with the proposed new rules
could be achieved in five years or less and at the additional direct economic
cost of CWD testing requirements imposed by the proposed new rules.
Loss of Sacrificed Deer
The proposed new rules would allow for the testing of additional deer
(compared to the previous testing requirements) for some deer breeders who
desire to move to a higher status. If deer are sacrificed for testing (in order
to reach the required number of post-mortem tests to be movement qualified,
maintain status, or in increase in status), there could be an economic impact
from the loss of the deer and any revenue that might have been realized from the
sale of the deer to another breeder or to a release site for liberation. As
noted previously, the department does not require that breeders report financial
data. The economic impact on a deer breeder would depend on whether the deer
breeder sacrifices deer to achieve testing requirements, and the number and type
of deer sacrificed. As noted above, the lost revenue from the sacrificed deer
could range from few hundred dollars or less per deer to thousands of dollars
per deer. However, it should also be noted that the option in the proposed rules
for ante-mortem testing should result in fewer deer being sacrificed for purpose
of testing.
Alternatives Considered
In the development of the proposed rules, including through discussions
among stakeholders and through the facilitated rulemaking process, several
alternatives were raised, discussed and/or considered to achieve the goals of
the proposed new rules while reducing potential adverse impacts on small and
micro-businesses and persons required to comply.
One alternative was to allow the interim rules to expire on their own terms
on August 31, 2016. If the interim rules expired, the CWD testing and deer
movement requirements would revert to those that existed prior to the 2015
discovery of CWD in Medina County. This alternative was rejected because the
presence of CWD in breeding facilities and free-ranging populations presents an
actual, direct threat to free-ranging and farmed cervid populations and the
economies that depend upon them. Although the previous rules provided some level
of monitoring and containment, the 2015 discovery of CWD in a white-tailed deer
in Medina County and the subsequent discovery of CWD in additional white-tailed
deer warrants a more comprehensive approach. Therefore, because the department
has a statutory duty to protect and conserve the wildlife resources of the
state, the previous rules would not achieve the necessary level of vigilance
needed to detect the presence and/or spread of CWD. Therefore, this alternative
was rejected. Another alternative would have been to propose rules identical or
very similar to the interim rules. This alternative was rejected for several
reasons. The interim rules were intended to be an interim regulatory response to
the 2015 discovery of CWD in white-tailed deer, and were not intended to be a
long-term response. The interim rules were developed to implement requirements
necessary to protect deer herds through the 2015-2016 hunting season, and
facilitate continuation of activities by deer breeders. As a result, the interim
rules did not provide for a fuller universe of options, such as live-animal
(ante-mortem) testing of breeder deer. Therefore, this alternative was
rejected.
PROPOSED RULES April 22, 2016 41 TexReg 2865
♦ ♦ ♦
Another alternative would be an absolute prohibition on the movement of
deer within the state for any purpose. While this alternative would
significantly reduce the potential spread of CWD, it would also have the
simultaneous effect of preventing landowners and land managers from implementing
popular management strategies involving the movement of deer, and would deprive
deer breeders of the ability to engage in the business of buying and selling
breeder deer. Therefore, this alternative was rejected because the department
determined that it placed an avoidable burden on the regulated community.
Another alternative would be imposing less stringent testing requirements.
This alternative was rejected because the testing requirements in the proposed
new rules reflect mathematical models aimed at higher confidence than is
possible under current disease-testing requirements that CWD is or is not
present. Less stringent testing requirements would reduce confidence and
therefore impair the ability of the department to respond in the event that CWD
actually is present. The department also believes that a higher testing
intensity is necessary to provide assurance to the hunting public, private
landowners, and the regulated community that wildlife resources are safe and
reliable.
The department has not drafted a local employment impact statement under
the Administrative Procedure Act, Government Code, §2001.022, as the agency has
determined that the rules as proposed will not result in direct impacts to local
economies.
The department has determined that there will not be a taking of private
real property, as defined by Government Code, Chapter 2007, as a result of the
proposed new rules. Any impacts resulting from the discovery of CWD in or near
private real property would be the result of the discovery of CWD and not the
proposed rules.
Comments on the proposed rule may be submitted to Mitch Lockwood, Texas
Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744;
(830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department's
website at www.tpwd.texas.gov. 31 TAC §§65.90 -65.94
The repeals are proposed under the authority of Parks and Wildlife Code,
Chapter 43, Subchapter L, which authorizes the commission to make regulations
governing the possession, transfer, purchase, sale, of breeder deer held under
the authority of the subchapter; Subchapter R, which authorizes the commission
to establish the conditions of a deer management permit, including the number,
type, and length of time that white-tailed deer may be temporarily detained in
an enclosure; Subchapter R-1, which authorizes the commission to establish the
conditions of a deer management permit, including the number, type, and length
of time that mule deer may be temporarily detained in an enclosure (although the
department has not yet established a DMP program for mule deer authorized by
Subchapter R-1); and §61.021, which provides that no person may possess a game
animal at any time or in any place except as permitted under a proclamation of
the commission.
The proposed repeals affect Parks and Wildlife Code, Chapter 43,
Subchapters E, L, R, and R-1.
§65.90. Definitions.
§65.91. General Provisions.
§65.92. Transfer Categories and Requirements.
§65.93. Release Sites -Qualifications and Testing Requirements.
§65.94. Chronic Wasting Disease -Deer Management Permit Provisions.
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 April 11, 2016.
TRD-201601677 Ann Bright General Counsel Texas Parks and Wildlife
Department Earliest possible date of adoption: May 22, 2016 For further
information, please call: (512) 389-4775
31 TAC §§65.90 -65.99
The new rules are proposed under the authority of Parks and Wildlife Code,
Chapter 43, Subchapter L, which authorizes the commission to make regulations
governing the possession, transfer, purchase, sale, of breeder deer held under
the authority of the subchapter; Subchapter R, which authorizes the commission
to establish the conditions of a deer management permit, including the number,
type, and length of time that white-tailed deer may be temporarily detained in
an enclosure; Subchapter R-1, which authorizes the commission to establish the
conditions of a deer management permit, including the number, type, and length
of time that mule deer may be temporarily detained in an enclosure (although the
department has not yet established a DMP program for mule deer authorized by
Subchapter R-1); and §61.021, which provides that no person may possess a game
animal at any time or in any place except as permitted under a proclamation of
the commission.
The proposed new rules affect Parks and Wildlife Code, Chapter 43,
Subchapters E, L, R, and R-1. §65.90. Definitions.
The following words and terms shall have the following meanings, except in
cases where the context clearly indicates otherwise.
(1) Accredited testing laboratory--A laboratory approved by the United
States Department of Agriculture to test white-tailed deer or mule deer for
CWD.
(2) Ante-mortem test--A CWD test performed on a live deer.
(3) Breeder deer--A white-tailed deer or mule deer possessed under a permit
issued by the department pursuant to Parks and Wildlife Code, Chapter 43,
Subchapter L, and Subchapter T of this chapter.
(4) Confirmed--A CWD test result of "positive" received from the National
Veterinary Service Laboratories of the United States Department of Agriculture.
(5) CWD--Chronic wasting disease.
(6) CWD-positive facility--Any facility in or on which CWD has been
confirmed.
(7) Deer breeder--A person who holds a deer breeder's per-mit issued
pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T
of this chapter. 41 TexReg 2866 April 22, 2016 Texas Register
(8) Deer breeding facility (breeding facility)--A facility authorized to
hold breeder deer under a permit issued by the department pursuant to Parks and
Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter (Deer
Breeder's Permit).
(9) Department (department)--Texas Parks and Wildlife Department.
(10) Deer Management Permit (DMP)--A permit issued under the provisions of
Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter
(relating to Deer Management Permit (DMP)) that authorizes the temporary
detention of deer for the purpose of propagation.
(11) Eligible-aged deer-( A) if the deer is held in a breeding facility
enrolled in the TAHC CWD Herd Certification Program, 12 months of age or older;
or (B) for any other deer, 16 months of age or older.
(12) Eligible mortality--An eligible-aged deer that has died.
(13) Exposed deer--Unless the department determines through an
epidemiological investigation that a specific deer has not been exposed, an
exposed deer is a white-tailed deer or mule deer that:
(A) is in a CWD-positive facility; or
(B) was in a CWD-positive facility within the five years preceding the
confirmation of CWD in the CWD-positive facility.
(14) Facility--Any location required to be registered in TWIMS under a deer
breeder's permit, Triple T permit, or DMP, including release sites and/or trap
sites.
(15) Hunter-harvested deer--A deer required to be tagged under the
provisions of Subchapter A of this chapter (relating to Statewide Hunting
Proclamation).
(16) Hunting year--That period of time between September 1 and August 31 of
any year when it is lawful to hunt deer under the provisions of Subchapter A of
this chapter (relating to Statewide Hunting Proclamation).
(17) Landowner (owner)--Any person who has an owner-ship interest in a
tract of land and includes landowner's authorized agent.
(18) Landowner's authorized agent (agent)--A person des-ignated by a
landowner to act on the landowner's behalf.
(19) Liberated deer--A free-ranging deer that bears evidence of having been
liberated including, but not limited to a tattoo (including partial or illegible
tattooing) or of having been eartagged at any time (holes, rips, notches, etc.
in the ear tissue).
(20) Movement Qualified (MQ)--A designation made by the department pursuant
to this division that allows a deer breeder to lawfully transfer breeder
deer.
(21) Not Movement Qualified (NMQ)--A designation made by the department
pursuant to this division that prohibits the transfer of deer by a deer
breeder.
(22) NUES tag--An ear tag approved by the United States Department of
Agriculture for use in the National Uniform Eartagging System (NUES).
(23) Originating facility--Any facility from which deer have been
transported, transferred, or released, as provided in this definition or as
determined by an investigation of the department, including:
(A) for breeder deer, the source facility identified on a transfer permit;
and
(B) for deer being moved under a Triple T permit, the trap site.
(24) Post-mortem test--A CWD test performed on a dead deer.
(25) Properly executed--A form or report required by this division on which
all required information has been entered.
(26) Reconciled herd--The breeder deer held in a breeding facility for
which every birth, mortality, and transfer of breeder deer in the previous
reporting year has been accurately reported.
(27) Release site--A specific tract of land to which deer are released,
including the release of deer under the provisions of this chapter or Parks and
Wildlife Code, Chapter 43, Subchapters E, L, R, or R-1.
(28) Reporting year--For a deer breeder's permit, the period of time from
April 1 of one calendar year through March 31 of the next calendar year.
(29) RFID tag--A button-type ear tag conforming to the 840 standards of the
United States Department of Agriculture's Animal Identification Number
system.
(30) Status--A level assigned under this division for any given facility on
the basis of testing performance and the source of the deer. For the transfer
categories established in §65.95(b) of this title (relating to Movement of
Breeder Deer), the highest status is Transfer Category 1 (TC 1) and the lowest
status is Transfer Category 3 (TC3). For the release site classes established in
§65.95(c) of this title, Class I is the highest status and Class III is the
lowest.
(31) Submit--When used in the context of test results, provided to the
department, either directly from a deer breeder or via an accredited testing
laboratory.
(32) Suspect--An initial CWD test result of "detected" that has not been
confirmed.
(33) TAHC--Texas Animal Health Commission.
(34) TAHC CWD Herd Certification Program--The disease-testing and herd
management requirements set forth in 4 TAC §40.3 (relating to Herd Status Plans
for Cervidae).
(35) TAHC Herd Plan--A set of requirements for disease testing and
management developed by TAHC for a specific facility.
(36) Test, Test Result(s), or Test Requirement--A CWD test, CWD test
result, or CWD test requirement as provided in this division.
(37) Trap Site--A specific tract of land approved by the department for the
trapping of deer under this chapter and Parks and Wildlife Code, Chapter 43,
Subchapters E, L, R, and R-1.
(38) Triple T permit--A permit to trap, transport, and trans-plant
white-tailed or mule deer (Triple T permit) issued under the provi-sions of
Parks and Wildlife Code, Chapter 43, Subchapter E, and Sub-chapter C of this
chapter (relating to Permits for Trapping, Transport-ing, and Transplanting Game
Animals and Game Birds),
(39) Trap, Transport and Process (TTP) permit--A permit issued under the
provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter
C of this chapter (relating to Permits for Trapping, Transporting, and
Transplanting Game Animals and Game PROPOSED RULES April 22, 2016 41 TexReg 2867
Birds), to trap, transport, and process surplus white-tailed deer (TTP
permit).
(40) TWIMS--The department's Texas Wildlife Information Management Services
(TWIMS) online application. §65.91. General Provisions.
(a) To the extent that any provision of this division conflicts with any
other provision of this chapter, this division prevails.
(b) Except as provided in this division, no live breeder deer or deer
trapped under a Triple T permit, TTP permit or DMP may be transferred anywhere
for any purpose.
(c) Except as provided in this division, no person shall introduce into or
remove deer from or allow or authorize deer to be introduced into or removed
from any facility for which a CWD test result of "suspect" has been obtained
from an accredited testing laboratory, irrespective of how the sample was
obtained or who collected the sample. The provisions of this subsection take
effect immediately upon the notification of a CWD "suspect" test result, and
continue in effect until the department expressly authorizes the resumption of
permitted activities at that facility.
(d) A facility (including a facility permitted after the effective date of
this division) that receives breeder deer from an originating facility of lower
status automatically assumes the status associated with the originating facility
and becomes subject to the testing and release requirements of this division at
that status for:
(1) a minimum of two years, if the facility is a breeding facility;
or
(2) for the period specified in §65.95(c)(1)(D) of this title (relating to
Movement of Breeder Deer), if the facility is a release site.
(e) A deer breeding facility that was initially permitted after March 31,
2016 will assume the lowest status among all originating facilities from which
deer are received.
(f) The designation of status by the department in and of itself does not
authorize the transfer or movement of deer. No person may remove or cause the
removal of deer from a facility that has been designated NMQ by the department
pursuant to this division.
(g) Unless expressly provided otherwise in this division, all applications,
notifications, and requests for change in status required by this division shall
be submitted electronically via TWIMS or by another method expressly authorized
by the department.
(h) In the event that technical or other circumstances prevent the
development or implementation of automated methods for collecting and submitting
the data required by this division via TWIMS, the department may prescribe
alternative methods for collecting and submitting the data required by this
division.
§65.92. CWD Testing.
(a) All CWD test samples at the time of submission for testing shall be
accompanied by a properly executed, department-prescribed form provided for that
purpose.
(b) For the purposes of this subchapter, an ante-mortem CWD test is not
valid unless it is performed by an accredited laboratory on retropharyngeal
lymph node, rectal mucosa, or tonsillar tissue collected by or under the
supervision of a qualified licensed veterinarian within six months of submission
from a live deer that:
(1) is at least 16 months of age;
(2) has been in the facility for at least 16 months; and
(3) has not been the source of a "not detected" ante-mortem test result
submitted within the previous 36 months.
(c) Ante-mortem tests submitted by a deer breeder for pur-poses of
attaining a higher status under the provisions of this section shall be
collected and submitted between October 15 of one year and March 15 of the
following year.
(d) A post-mortem CWD test is not valid unless it is performed by an
accredited testing laboratory on the obex of an eligible mortal-ity, which may
be collected only by a qualified licensed veterinarian or other person certified
by TAHC to perform that procedure. A medial retropharyngeal lymph node collected
from the eligible mortality by an qualified licensed veterinarian or other
person approved by the depart-ment may be submitted to an accredited testing
facility for testing in addition to or in lieu of the obex (if the obex cannot
be obtained) of the eligible mortality.
(e) To meet the requirements of §65.94(a)(1)(B) and (C) of this title
(relating to Breeding Facility Minimum Movement Qualifi-cations), or §65.95 of
this title, ante-mortem test results may be sub-stituted for post-mortem test
results at a ratio of two "not detected" ante-mortem test results for each
required "not detected" post-mortem test result, provided:
(1) at least two eligible mortalities have occurred in the fa-cility in the
corresponding report year; and
(2) "not detected" post-mortem test results equal to at least 50 percent of
the total test results required have been submitted.
(f) Except as provided in this section, an ante-mortem test re-sult may not
be used more than once to satisfy any testing requirement of this division.
(g) The testing requirements of this division cannot be altered by the sale
or subdivision of a property to a related party if the purpose of the sale or
subdivision is to avoid the requirements of this division.
(h) The owner of a release site agrees, by consenting to the release of
breeder deer on the release site, to submit all required CWD test results to the
department as soon as possible but not later than May 1 of each year for as long
as CWD testing is required at the release site under the provisions of this
division. §65.93.
Harvest Log.
(a) When a release site is required by this division to maintain a harvest
log, the harvest log shall be maintained daily and shall meet the requirements
of this section.
(b) For each deer harvested on the release site the landowner must, on the
same day that the deer is harvested, legibly enter the fol-lowing information in
the daily harvest log:
(1) the name and hunting license of the person who har-vested the deer;
(2) the date the deer was harvested;
(3) the species (white-tailed or mule deer) and type of deer harvested
(buck or antlerless);
(4) any alphanumeric identifier tattooed on the deer;
(5) any RFID or NUES tag number of any RFID or NUES tag affixed to the
deer; and (6) any other identifier and identifying number on the deer, including
a description of any evidence or indication that the deer was a liberated deer
including, but not limited to evidence of having been eartagged at any time
(holes, rips, notches, etc. in ear tissue).
41 TexReg 2868 April 22, 2016 Texas Register
(c) The daily harvest log shall be made available upon request to any
department employee acting in the performance of official du-ties.
(d) By not later than April 1 of each year, the owner of a release site
shall submit the contents of the daily harvest log to the department via TWIMS
or via another method specified by the department.
(e) The daily harvest log shall be on a form provided or ap-proved by the
department and shall be retained for a period of one year following submission
and acceptance by the department. §65.94.
Breeding Facility Minimum Movement Qualification.
(a) Notwithstanding any other provision of this division, a breeding
facility is designated NMQ and is prohibited from transfer-ring breeder deer
anywhere for any purpose if the breeding facility:
(1) has not complied with the following testing require-ments:
(A) submitted CWD "not detected" test results for at least 20% of the total
number of eligible mortalities that occurred in the facility since May 23, 2006;
(B) submitted CWD "not detected" test results for at least 50% of eligible
mortalities occurring in the facility during each reporting year beginning April
1, 2016; and
(C) beginning April 1, 2021, the number of "not detected" test results
submitted during the previous five consecutive years must be equal to or greater
than the following number: the sum of the eligible-aged population in the
breeding facility at the end of each of the previous five consecutive reporting
years, plus the sum of the eligible mortalities that occurred within the
breeding facility for each of the previous five consecutive reporting years,
multiplied by 2.25 percent; tests submitted pursuant to subparagraph (B) of this
paragraph may be used to satisfy the testing requirements of this
subparagraph;
(2) is not authorized pursuant to a TAHC Herd Plan associated with a TAHC
hold order or TAHC quarantine;
(3) does not have a reconciled herd inventory;
(4) is not in compliance with the provisions of §65.608 of this title
(relating to Annual Reports and Records).
(b) A facility that has been designated as NMQ for failure to comply with
the testing requirements specified in subsection (a) of this section, will be
restored to MQ when sufficient "not detected" test results as described in
subsection (a) of this section are submitted.
(c) A facility designated NMQ shall report all mortalities within the
facility to the department immediately upon discovery of the mortality.
(d) Immediately upon the notification that a facility has received a CWD
suspect" test result (a CWD suspect facility), all facilities that received deer
from or provided deer to the CWD suspect facility within the previous five years
shall be designated NMQ by the department until it is determined that the
facility is not epidemiologically linked to the CWD suspect deer, or it is
determined upon further testing that the "suspect" deer is not a confirmed
positive.
§65.95. Movement of Breeder Deer.
(a) General. Except as otherwise provided in this division, a TC 1 or TC 2
breeding facility may transfer breeder deer under a transfer permit that has
been activated and approved by the department as provided in §65.610(e) of this
title (relating to Transfer of Deer) to:
(1) another breeding facility;
(2) an approved release site as provided in paragraph (3) of this
subsection;
(3) a DMP facility; or
(4) to another person for nursing purposes.
(b) Breeder Facilities.
(1) TC 1.
(A) Except as may be otherwise provided in this division, a breeding
facility is a TC 1 facility if:
(i) it has "fifth-year" or "certified" status in the TAHC CWD Herd
Certification Program;
(ii) has submitted "not detected" post-mortem test results equivalent
to:
(I) at least 80 percent of the total number of eligible mortalities that
occurred in the breeding facility in each reporting year of the immediately
preceding five-year period and each year thereafter; and
(II) a number of "not detected" post-mortem test results submitted during
the previous five consecutive years equal to or greater than the following
number: the sum of the eligible-aged population in the breeding facility at the
end of each of the previous five consecutive reporting years, plus the sum of
the eligible mortalities that occurred within the breeding facility for each of
the previous five consecutive reporting years, multiplied by 3.6 percent; tests
submitted pursuant to subclause (I) of this clause may be used to satisfy the
testing requirements of this subclause.
(iii) has submitted the following "not detected" test results:
(I) ante-mortem tests of at least 80 percent of eligible-aged deer in the
facility's inventory at the time the testing is conducted;
(II) post-mortem tests of at least 80 percent of all eligible mortalities
during each reporting year thereafter; and
(III) beginning April 1, 2021, the number of "not detected" post-mortem
test results submitted within the previous five consecutive years must be equal
to or greater than the following number: the sum of the eligible-aged population
in the breeding facility at the end of each of five consecutive reporting years,
plus the sum of the eligible mortalities that have occurred within the breeding
facility for each of the five consecutive years, multiplied by 3.6 percent;
tests submitted pursuant to subclause (II) of this clause may be used to satisfy
the testing requirements of this subclause; or
(iv) "not detected" test results are submitted on an annual basis
for:
(I) ante-mortem tests of at least 25 percent of eligible-aged deer in the
facility's inventory at the time the testing is conducted; and
(II) post-mortem tests of at least 50 percent of eligible
mortalities.
(B) Failure to Comply with TC 1 Testing Requirements.
(i)
Upon processing of the annual report, a TC 1 facility that has not met the
post-mortem testing requirements of this section becomes a TC 2 facility.
(ii)
If the deer breeder seeks to regain TC 1 status, the deer breeder must,
within 60 days from the date the breeder is notified by the department of the
change in status, furnish the test results
PROPOSED RULES April 22, 2016 41 TexReg 2869
necessary to be in full compliance with the applicable TC 1 testing
re-quirements in order to be returned to TC1 status.
(iii) If after 60 days the department has not received test results
sufficient to achieve compliance with the applicable TC 1 testing requirements,
the breeding facility is not eligible to regain TC 1 status for a period of two
years.
(iv) A breeder will not be eligible to regain TC 1 sta-tus, if breeder deer
from a lower status breeding facility are transferred to the breeding facility
during the 60 days in which the breeder is seek-ing to regain TC 1 status.
(2) TC 2.
(A) A breeding facility is a TC 2 facility if:
(i) it is not a TC 1 facility; and
(ii) it is not a TC 3 facility.
(B) The testing requirements for a TC 2 facility are the minimum testing
requirements established for MQ designation in §65.94(a)(1) of this title
(relating to Breeding Facility Minimum Movement Qualification).
(3) TC 3.
(A) A TC 3 facility is any breeding facility registered in TWIMS that is
under a TAHC hold order and/or herd plan and meets any of the following
criteria:
(i) received an exposed deer within the previous five years;
(ii) transferred deer to a CWD-positive facility within the five-year
period preceding the confirmation of CWD in the CWD-positive facility; or
(iii) possessed a deer that was in a CWD-positive facility within the
previous five years.
(B) No deer from a TC 3 facility may be transferred or liberated unless
expressly authorized in a TAHC herd plan and then only in accordance with the
provisions of this division and the TAHC herd plan.
(C) A TC 3 breeding facility remains a TC 3 breeding facility until the
TAHC hold order in effect at the breeding facility has been lifted.
(D) A TC3 breeding facility may not transfer a breeder deer for any purpose
unless the deer has been tagged in one ear with a NUES tag or button-type RFID
tag approved by the department.
(c) Release Sites.
(1) General.
(A) An approved release site consists solely of the spe-cific tract of land
to which deer are released and the acreage designated as a release site in
TWIMS.
(B) Liberated breeder deer must have complete, unre-stricted access to the
entirety of the release site.
(C) All release sites onto which breeder deer are liber-ated must be
surrounded by a fence of at least seven feet in height that is capable of
retaining deer at all times. The owner of the release site is responsible for
ensuring that the fence and associated infrastructure retain deer.
(D) The testing requirements of this subsection con-tinue in effect until
"not detected" test results have been submitted for five consecutive hunting
years following the last date on which breeder deer were liberated on the
release site. A release site that is not in compliance with the testing
requirements of this subsection is ineligible to receive deer.
(E) No person may intentionally cause or allow any live deer to leave or
escape from a release site onto which breeder deer have been liberated.
(F) The owner of a Class II or Class III release site shall maintain a
harvest log at the release site that complies with §65.93 of this title
(relating to Harvest Log).
(2) Class I Release Site.
A release site that is in compli-ance with the applicable provisions of
this division and receives deer only from TC 1 facilities is a Class I release
site and is not required to perform CWD testing, unless it becomes a Class II or
Class III release site.
(3) Class II Release Site.
(A) A release site that receives deer from a TC 2 breed-ing facility is a
Class II release site unless it becomes a Class III release site.
(B) Each year that a Class II release site receives deer from any TC 2
breeding facility, the owner of the release site must, for a period of five
consecutive hunting years immediately following the release, submit "not
detected" post-mortem test results for:
(i) 50 percent of liberated deer that are harvested at the release site; or
(ii) if no liberated deer are harvested at the release site in any hunting
year, 50 percent of hunter-harvested deer.
(C) Upon the satisfaction of the provisions of paragraph (3)(B) of this
subsection, a Class II release site becomes a Class I re-lease site.
(4) Class III Release Site.
(A) A release site is a Class III release site if:
(i) it has:
(I) received deer from an originating facility that is a TC 3 facility;
or
(II) received an exposed deer within the previous five years or has
transferred deer to a CWD-positive facility within the five-year period
preceding the confirmation of CWD in the CWD-positive facility; and
(ii) has not been released from a TAHC hold order related to activity
described in clause
(i) of this subparagraph.
(B) The landowner of a Class III release site must sub-mit post-mortem CWD
test results for one of the following values, whichever represents the greatest
number of deer tested:
(i) 100 percent of all hunter-harvested deer; or
(ii) one hunter-harvested deer per liberated deer re-leased on the release
site between the last day of lawful hunting on the release in the previous
hunting year and the last day of lawful hunting on the release site during the
current hunting year; provided, however, this minimum harvest and testing
provision may only be substituted as prescribed in a TAHC herd plan.
(C) No breeder deer may be transferred to a Class III release site unless
the deer has been tagged in one ear with a NUES tag or button-type RFID tag
approved by the department. §65.96. Movement of DMP Deer.
41 TexReg 2870 April 22, 2016 Texas Register
This section applies to the movement of deer under a DMP.
(1) Testing Requirements.
(A) There are no CWD testing requirements for a DMP facility that:
(i) does not receive breeder deer; or
(ii) receives breeder deer solely from TC 1 deer breeding facilities.
(B) A release site onto which deer are liberated from the following is
required to submit "not detected" test results equivalent to 50 percent of the
number of hunter-harvested deer in each hunting year for five consecutive
hunting years, beginning with the hunting year immediately following the
liberation of:
(i) deer from a DMP facility that receives breeder deer from a TC 2 deer
breeding facility; or
(ii) deer from a DMP facility that receives deer trapped deer from a Class
II release site.
(2) The department will not authorize the transfer of deer to a DMP
facility from a TC 3 breeding facility. §65.97. Testing and Movement of Deer
Pursuant to a Triple T or TTP Permit.
(a) General.
(1) The provisions of §65.102 of this title (relating to Disease Detection
Requirements) cease effect upon the effective date of this section.
(2) The department may require a map of any Triple T trap site to be
submitted as part of the application process.
(3) The department will not issue a Triple T permit authorizing deer to be
trapped at a:
(A) release site that has received breeder deer within five years of the
application for a Triple T permit;
(B) release site that has failed to fulfill testing requirements;
(C) any site where a deer has been confirmed positive for CWD;
(D) any site where a deer has tested "suspect" for CWD; or
(E) any site under a TAHC hold order.
(4) In addition to the reasons for denying a Triple T per-mit listed in
§65.103(c) of this title (relating to Trap, Transport, and Transplant Permit),
the department will not issue Triple T permit if the department determines,
based on epidemiological assessment and con-sultation with TAHC that to do so
would create an unacceptable risk for the spread of CWD.
(5) All deer released under the provisions of this section must be tagged
prior to release in one ear with a button-type RFID tag approved by the
department. RFID tag information must be submitted to the department.
(6) Nothing in this section authorizes the take of deer ex-cept as
authorized by applicable laws and regulations, including but not limited to laws
and regulations regarding seasons, bag limits, and means and methods as provided
in Subchapter A of this chapter (relat-ing to Statewide Hunting Proclamation).
(7) Except for a permit issued for the removal of urban deer, a test result
is not valid if the sample was collected or tested after the Saturday closest to
September 30 of the year for which activities of the permit are
authorized.
(8) For permits issued for the removal of urban deer, test samples may be
collected between April 1 and the time of application.
(9) The owner of a Triple T release site shall maintain a harvest log at
the release site that complies with §65.93 of this title (relating to Harvest
Log).
(10) A Triple T release site consists solely of the specific tract of land
to which deer are released and the acreage designated as a release site in
TWIMS.
(11) Deer transferred pursuant to a Triple T permit must have complete,
unrestricted access to the entirety of the release site.
(12) The testing requirements of this subsection continue in effect until
"not detected" test results have been submitted for five consecutive hunting
years following the last date on which deer were transferred to the site
pursuant to a Triple T permit. A Triple T release site that is not in compliance
with the testing requirements of this subsection will be ineligible as a release
site.
(b) Testing Requirements for Triple T Permit.
(1) The department will not issue a Triple T permit unless "not detected"
post-mortem test results have been submitted for 15 eligible-aged deer from the
trap site.
(2) The landowner of a Triple T release site shall submit "not detected"
post-mortem test results for a period of five consecutive hunting years
immediately following the release for:
(A) 50 percent of liberated deer that are harvested at the Triple T release
site; or
(B) if no liberated deer are harvested at the Triple T release site in any
hunting year, 50 percent of hunter-harvested deer.
(3) CWD testing is not required for deer trapped on any property if the
deer are being moved to adjacent, contiguous tracts owned by the same person who
owns the trap site property.
(c) Testing Requirements for TTP Permit.
(1) "Not detected" test results for at least 15 eligible-aged deer from the
trap site must be submitted.
(2) The landowner of a Class III release site must submit CWD test results
for 100% of the deer harvested pursuant to a TTP permit, which may include the
samples required under paragraph (1) of this subsection.
(3) Test results related to a TTP permit must be submitted to the
department by the method prescribed by the department by the May 1 immediately
following the completion of permit activities. §65.98. Transition Provisions.
(a) This division does not apply to an offense committed be-fore the
effective date of this division. An offense committed before the effective date
of this division is governed by the regulations that existed on the date the
offense was committed, including, but not lim-ited to the following:
(1) Deer Breeder: published in the Texas Register Septem-ber 4, 2015 (40
TexReg 5566); January 1, 2016 (41 TexReg 9); January 29, 2016 (41 TexReg 815);
(2) DMP: published in the Texas Register October 23, 2015 (40 TexReg 7305);
February 12, 2016 (41 TexReg 1049); February 19, 2016 (41 TexReg 1250);
and
PROPOSED RULES April 22, 2016 41 TexReg 2871
♦ ♦ ♦
(3) Triple T/TTP: published in the Texas Register October 23, 2015 (40
TexReg 7307); January 1, 2016 (41 TexReg 9).
(b) A release site that was in compliance with the Interim Deer Breeder
Rules (41 TexReg 815) shall be not subject to testing requirements until deer
are liberated or released onto the release site under the provisions of this
division.
(c) A release site that was not in compliance with the Interim Deer Breeder
Rules (41 TexReg 815) shall:
(1) be required to comply with the applicable provisions of this division
regarding Class II or Class III sites for a period of five years beginning on
the first day of lawful hunting for the 2016-2017 hunting year; and
(2) be ineligible to be a release site for breeder deer or deer transferred
pursuant to a Triple T permit until the release site has complied with paragraph
(1) of this subsection.
(d) The department's executive director shall develop a transition plan and
issue appropriate guidance documents to facilitate an effective transition to
this division from previously applicable regulations. The transition plan shall
include, but is not limited to, provision addressing a mechanism for classifying
facilities that have obtained "not detected" ante-mortem test results at a level
that meets or exceeds that required in this division prior to the effective date
of this division.
§65.99. Violations and Penalties.
(a) A person who violates a provision of this division or a condition of a
deer breeder's permit, DMP, Triple T permit, or TTP permit commits an offense
and is subject to the penalties prescribed by the applicable provisions of the
Parks and Wildlife Code.
(b) A person who possesses or receives white-tailed deer or mule deer under
the provisions of this division and/or Subchapters C, D, or T of this chapter is
subject to the provisions of TAHC regulations at 4 TAC Chapter 40 (relating to
Chronic Wasting Disease) that are applicable to white-tailed or mule deer.
(c) A person who fails to comply with a provision of this division or a
condition of a deer's breeder permit, DMP, Triple T permit, or TTP permit may be
prohibited by the department from future permit eligibility or issuance.
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 April 11, 2016.
TRD-201601678 Ann Bright General Counsel Texas Parks and Wildlife
Department Earliest possible date of adoption: May 22, 2016 For further
information, please call: (512) 389-4775
***Comments on the proposed rule may be submitted to Mitch Lockwood, Texas
Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744;
(830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department's
website at www.tpwd.texas.gov. ***
Greetings TPWD, Director Big Game Mitch Lockwood et al,
I would kindly like to comment and submit the following pertaining to the
;
TPWD proposes the repeal of §§65.90 -65.94 and new §§65.90 -65.99
Concerning Chronic Wasting Disease - Movement of Deer
My comments and source reference pertaining to my comments are as
follows;
If we don’t get serious about the TSE Prion disease, all of them, and what
we really need to do, and do it, it may be too late.
some of the industry claims that cwd has been here a long time and will
just die out.
I don’t believe that, and how did that work our for Scrapie (same as cwd).
if we continue to ignore the CWD TSE prion, it will only get worse.
all hunter kill cervid must be tested for CWD, this should be mandatory in
every state, and it should say it on your tags.
you can’t have one state making up a set of cwd tse prion rules based on
how they might read the science and policy there from, and not have the rest of
the states reading the science the same way and making the same policy making
decisions for the cwd tse prion, and then import and export between them. it
just does not work.
the states must get on the same page, and the only way that will happen is
to have it mandatory and regulated by the feds, however, we must make sure the
feds are on the same page with sound science, and in doing this, we must have
sound cwd tse prion policy making, from science by scientist, not by paid
lobbyist, politicians, or scientist they have in their pockets$
stop all transport of cervid and cervid carcasses from state to state, any
and all parts, and even between counties in one state where cwd risk factor is.
trucking cwd tse prion around is a real risk factor, down to the dirt on
the tires, and dirt on the clothes or shoes of any person or animal that has
been exposed to cwd tse prion.
cwd tse prion has the capabilities of exposing water tables, land, the
surrounding environment, fence line, furniture, and plants, down to the knife
and equipment you use to clean a deer or elk.
stop baiting period. the congregation of cervid by unnatural means whether
or not it’s a pile of corn or a field of planted lettuce and such, bottom line,
you congregate cervid in one place, and over time, the shedding of the CWD TSE
Prion will load up the environment, and given enough time, everything will be
exposed or contaminated.
stop urine use for scents.
stop the use of mineral blocks.
stop the feeding grounds at state parks.
stop the loophole that still allows animal protein being fed to cervid.
cwd tse prion testing must be enhanced in all states, with a large increase
in all cwd tse prion testing across the board.
scorched earth policy must be adhered to. kill everything, and test it with
validated cwd tse prion test, until a live validated test is ready, one that can
guaranty without any doubt, to be 100% in all cervid, of all age groups.
killing and field dressing a cervid in the wild has it’s risk factors for
the cwd tse prion to spread, due to environmental risk factors, if that cervid
is infected with CWD tse prion. proper carcass disposal is critical.
game farms help spread cwd, simple fact. it’s been proven. game farms are
not the only risk factor though, however, they are a big part of the problem,
history shows this.
the quarantine of cwd tse prion infected game farms must be extended to 16
years now.
the CWD LOTTO ENTITLEMENT of captive game farms where the states pays game
farms for CWD MUST BE STOPPED. if the cwd infected farm does not buy insurance
for any and all loss from CWD for them and any party that does business with
them, and or any loss to the state, and or any products there from, that’s to
bad, they should never be allowed to be permitted. in fact, for any state that
does allow game farming, urine mills, sperm mills, antler mills, velvet mills,
big high fence ranch, little low fence farm, in my opinion, it’s that states
responsibility to protect that state, thus, any states that allow these farms
and business there from, it should be mandatory before any permit is allowed,
that game farm must have enough personal insurance that would cover that farm,
any farm that does business with them, and or any products there from, and the
state, before such permit is issued. personally, I am sick and tired of all the
big ag entitlement programs, and that’s all cwd indemnity is. in fact, the USDA
CWD INDEMNITY PROGRAM, should read, THE USDA CWD ENTITLEMENT PROGRAM.
we cannot, and must not, let the industry regulate itself, especially with
the junk science they try to use. it’s just not working, and it’s been going on
long enough.
if they are not going to be science based, they must be banned.
science has told us for 3 decade or longer, that these are the things that
_might_ work, yet thanks to the industry, and government catering to industry,
regulations there from have failed, because of catering to the industry, and the
cwd tse prion agent has continued to spread during this time. a fine example is
Texas.
>>>Another alternative would be an absolute prohibition on the
movement of deer within the state for any purpose. While this alternative would
significantly reduce the potential spread of CWD, it would also have the
simultaneous effect of preventing landowners and land managers from implementing
popular management strategies involving the movement of deer, and would deprive
deer breeders of the ability to engage in the business of buying and selling
breeder deer. Therefore, this alternative was rejected because the department
determined that it placed an avoidable burden on the regulated
community.<<<
Thursday, April 07, 2016
What is the risk of chronic wasting disease being introduced into Great
Britain? An updated Qualitative Risk Assessment March 2016
Sheep and cattle may be exposed to CWD via common grazing areas with
affected deer but so far, appear to be poorly susceptible to mule deer CWD
(Sigurdson, 2008).
***In contrast, cattle are highly susceptible to white-tailed deer CWD and
mule deer CWD in experimental conditions but no natural CWD infections in cattle
have been reported (Sigurdson, 2008; Hamir et al., 2006). It is not known how
susceptible humans are to CWD but given that the prion can be present in muscle,
it is likely that humans have been exposed to the agent via consumption of
venison (Sigurdson, 2008). Initial experimental research, however, suggests that
human susceptibility to CWD is low and there may be a robust species barrier for
CWD transmission to humans (Sigurdson, 2008). It is apparent, though, that CWD
is affecting wild and farmed cervid populations in endemic areas with some deer
populations decreasing as a result.
snip...
For the purpose of the qualitative risk assessment developed here it is
necessary to estimate the probability that a 30-ml bottle of lure contains urine
from an infected deer. This requires an estimate of the proportion of deer herds
in the USA which are infected with CWD together with the within herd
prevalence.
The distribution map of CWD in US shows it is present mainly in central
states (Figure 1). However, Virginia in the east of the country has recorded
seven recent cases of CWD (Anon 2015a). Some US manufacturers claim to take
steps to prevent urine being taken from infected animals eg by sourcing from
farms where the deer are randomly tested for CWD (Anon 2015a). However, if
disease is already present and testing is not carried out regularly, captive
populations are not necessarily disease free (Strausser 2014). Urine-based deer
lures have been known to be collected from domestic white-tailed deer herds and
therefore there is a recognised risk. This is reflected by 6 US States which
have
14
banned the use of natural deer urine for lures, as the deer urine may be
sourced from CWD-endemic areas in the USA as well as from areas free of CWD. For
example, the US State of Virginia is banning the use of urine-based deer lures
on July 2015 and Vermont from 2016 due to the risk of spread of CWD. Alaska
banned their use in 2012 (Anon 2015a). Pennsylvania Game Commission has banned
urine-based deer lures and acknowledged that there is no way to detect their use
(Strausser 2014). On the basis of unpublished data (J. Manson, Pers. Comm.) it
appears that up to 50% of deer herds can be infected with 80-90% of animals
infected within some herds.
*** It is therefore assumed that probability that a 30-ml bottle of deer
urine lure imported from the USA is sources from an infected deer is
medium.
SNIP...
In the USA, under the Food and Drug Administration’s BSE Feed Regulation
(21 CFR 589.2000) most material (exceptions include milk, tallow, and gelatin)
from deer and elk is prohibited for use in feed for ruminant animals. With
regards to feed for non-ruminant animals, under FDA law, CWD positive deer may
not be used for any animal feed or feed ingredients.
***For elk and deer considered at high risk for CWD, the FDA recommends
that these animals do not enter the animal feed system.
***However, this recommendation is guidance and not a requirement by law.
***Animals considered at high risk for CWD include:
***1) animals from areas declared to be endemic for CWD and/or to be CWD
eradication zones and
***2) deer and elk that at some time during the 60-month period prior to
slaughter were in a captive herd that contained a CWD-positive animal.
***Therefore, in the USA, materials from cervids other than CWD positive
animals may be used in animal feed and feed ingredients for non-ruminants. The
amount of animal PAP that is of deer and/or elk origin imported from the USA to
GB cannot be determined, however, as it is not specified in TRACES. It may
constitute a small percentage of the very low tonnage of non-fish origin
processed animal proteins that were imported from US into GB.
*** Overall, therefore, it is considered there is a greater than negligible
risk that (non-ruminant) animal feed and pet food containing deer and/or elk
protein is imported into GB. There is uncertainty associated with this estimate
given the lack of data on the amount of deer and/or elk protein possibly being
imported in these products.
SNIP...
Summary and MORE HERE ;
What is the risk of chronic wasting disease being introduced into Great
Britain? An updated Qualitative Risk Assessment March 2016
Sunday, March 20, 2016
Docket No. FDA-2003-D-0432 (formerly 03D-0186) Use of Material from Deer
and Elk in Animal Feed Singeltary Submission
Tuesday, March 15, 2016
Docket No. FDA-2016-N-0321 Risk Assessment of Foodborne Illness Associated
with Pathogens from Produce Grown in Fields Amended with Untreated Biological
Soil Amendments of Animal Origin; Request for Comments, Scientific Data, and
Information Singeltary Submission
PRION 2016 TOKYO
Zoonotic Potential of CWD Prions: An Update
Ignazio Cali1, Liuting Qing1, Jue Yuan1, Shenghai Huang2, Diane Kofskey1,3,
Nicholas Maurer1, Debbie McKenzie4, Jiri Safar1,3,5, Wenquan Zou1,3,5,6,
Pierluigi Gambetti1, Qingzhong Kong1,5,6
1Department of Pathology, 3National Prion Disease Pathology Surveillance
Center, 5Department of Neurology, 6National Center for Regenerative Medicine,
Case Western Reserve University, Cleveland, OH 44106, USA.
4Department of Biological Sciences and Center for Prions and Protein
Folding Diseases, University of Alberta, Edmonton, Alberta, Canada,
2Encore Health Resources, 1331 Lamar St, Houston, TX 77010
Chronic wasting disease (CWD) is a widespread and highly transmissible
prion disease in free-ranging and captive cervid species in North America. The
zoonotic potential of CWD prions is a serious public health concern, but the
susceptibility of human CNS and peripheral organs to CWD prions remains largely
unresolved. We reported earlier that peripheral and CNS infections were detected
in transgenic mice expressing human PrP129M or PrP129V. Here we will present an
update on this project, including evidence for strain dependence and influence
of cervid PrP polymorphisms on CWD zoonosis as well as the characteristics of
experimental human CWD prions.
PRION 2016 TOKYO
In Conjunction with Asia Pacific Prion Symposium 2016
PRION 2016 Tokyo
Prion 2016
LOOKING FOR CWD IN HUMANS AS nvCJD or as an ATYPICAL CJD, LOOKING IN ALL
THE WRONG PLACES $$$
*** These results would seem to suggest that CWD does indeed have zoonotic
potential, at least as judged by the compatibility of CWD prions and their human
PrPC target. Furthermore, extrapolation from this simple in vitro assay suggests
that if zoonotic CWD occurred, it would most likely effect those of the PRNP
codon 129-MM genotype and that the PrPres type would be similar to that found in
the most common subtype of sCJD (MM1).***
PRION 2015 CONFERENCE FT. COLLINS CWD RISK FACTORS TO HUMANS
*** LATE-BREAKING ABSTRACTS PRION 2015 CONFERENCE ***
O18
Zoonotic Potential of CWD Prions
Liuting Qing1, Ignazio Cali1,2, Jue Yuan1, Shenghai Huang3, Diane Kofskey1,
Pierluigi Gambetti1, Wenquan Zou1, Qingzhong Kong1 1Case Western Reserve
University, Cleveland, Ohio, USA, 2Second University of Naples, Naples, Italy,
3Encore Health Resources, Houston, Texas, USA
*** These results indicate that the CWD prion has the potential to infect
human CNS and peripheral lymphoid tissues and that there might be asymptomatic
human carriers of CWD infection.
==================
***These results indicate that the CWD prion has the potential to infect
human CNS and peripheral lymphoid tissues and that there might be asymptomatic
human carriers of CWD infection.***
==================
P.105: RT-QuIC models trans-species prion transmission
Kristen Davenport, Davin Henderson, Candace Mathiason, and Edward Hoover
Prion Research Center; Colorado State University; Fort Collins, CO USA
Conversely, FSE maintained sufficient BSE characteristics to more
efficiently convert bovine rPrP than feline rPrP. Additionally, human rPrP was
competent for conversion by CWD and fCWD.
***This insinuates that, at the level of proteinrotein interactions, the
barrier preventing transmission of CWD to humans is less robust than previously
estimated.
================
***This insinuates that, at the level of proteinrotein interactions, the
barrier preventing transmission of CWD to humans is less robust than previously
estimated.***
================
*** PRICE OF CWD TSE PRION POKER GOES UP 2014 ***
Transmissible Spongiform Encephalopathy TSE PRION update January 2, 2014
*** chronic wasting disease, there was no absolute barrier to conversion of
the human prion protein.
*** Furthermore, the form of human PrPres produced in this in vitro assay
when seeded with CWD, resembles that found in the most common human prion
disease, namely sCJD of the MM1 subtype.
*** These results would seem to suggest that CWD does indeed have zoonotic
potential, at least as judged by the compatibility of CWD prions and their human
PrPC target. Furthermore, extrapolation from this simple in vitro assay suggests
that if zoonotic CWD occurred, it would most likely effect those of the PRNP
codon 129-MM genotype and that the PrPres type would be similar to that found in
the most common subtype of sCJD (MM1).***
*** The potential impact of prion diseases on human health was greatly
magnified by the recognition that interspecies transfer of BSE to humans by beef
ingestion resulted in vCJD. While changes in animal feed constituents and
slaughter practices appear to have curtailed vCJD, there is concern that CWD of
free-ranging deer and elk in the U.S. might also cross the species barrier.
Thus, consuming venison could be a source of human prion disease. Whether BSE
and CWD represent interspecies scrapie transfer or are newly arisen prion
diseases is unknown. Therefore, the possibility of transmission of prion disease
through other food animals cannot be ruled out. There is evidence that vCJD can
be transmitted through blood transfusion. There is likely a pool of unknown size
of asymptomatic individuals infected with vCJD, and there may be asymptomatic
individuals infected with the CWD equivalent. These circumstances represent a
potential threat to blood, blood products, and plasma supplies.
Prion. 10:S15-S21. 2016 ISSN: 1933-6896 printl 1933-690X online
Taylor & Francis
Prion 2016 Animal Prion Disease Workshop Abstracts
WS-01: Prion diseases in animals and zoonotic potential
Juan Maria Torres a, Olivier Andreoletti b, J uan-Carlos Espinosa a.
Vincent Beringue c. Patricia Aguilar a,
Natalia Fernandez-Borges a. and Alba Marin-Moreno a
"Centro de Investigacion en Sanidad Animal ( CISA-INIA ). Valdeolmos,
Madrid. Spain; b UMR INRA -ENVT 1225 Interactions Holes Agents Pathogenes. ENVT.
Toulouse. France: "UR892. Virologie lmmunologie MolécuIaires, Jouy-en-Josas.
France
Dietary exposure to bovine spongiform encephalopathy (BSE) contaminated
bovine tissues is considered as the origin of variant Creutzfeldt Jakob (vCJD)
disease in human. To date, BSE agent is the only recognized zoonotic prion.
Despite the variety of Transmissible Spongiform Encephalopathy (TSE) agents that
have been circulating for centuries in farmed ruminants there is no apparent
epidemiological link between exposure to ruminant products and the occurrence of
other form of TSE in human like sporadic Creutzfeldt Jakob Disease (sCJD).
However, the zoonotic potential of the diversity of circulating TSE agents has
never been systematically assessed. The major issue in experimental assessment
of TSEs zoonotic potential lies in the modeling of the ‘species barrier‘, the
biological phenomenon that limits TSE agents’ propagation from a species to
another. In the last decade, mice genetically engineered to express normal forms
of the human prion protein has proved essential in studying human prions
pathogenesis and modeling the capacity of TSEs to cross the human species
barrier.
To assess the zoonotic potential of prions circulating in farmed ruminants,
we study their transmission ability in transgenic mice expressing human PrPC
(HuPrP-Tg). Two lines of mice expressing different forms of the human PrPC
(129Met or 129Val) are used to determine the role of the Met129Val dimorphism in
susceptibility/resistance to the different agents.
These transmission experiments confirm the ability of BSE prions to
propagate in 129M- HuPrP-Tg mice and demonstrate that Met129 homozygotes may be
susceptible to BSE in sheep or goat to a greater degree than the BSE agent in
cattle and that these agents can convey molecular properties and
neuropathological indistinguishable from vCJD. However homozygous 129V mice are
resistant to all tested BSE derived prions independently of the originating
species suggesting a higher transmission barrier for 129V-PrP variant.
Transmission data also revealed that several scrapie prions propagate in
HuPrP-Tg mice with efficiency comparable to that of cattle BSE. While the
efficiency of transmission at primary passage was low, subsequent passages
resulted in a highly virulent prion disease in both Met129 and Val129 mice.
Transmission of the different scrapie isolates in these mice leads to the
emergence of prion strain phenotypes that showed similar characteristics to
those displayed by MM1 or VV2 sCJD prion. These results demonstrate that scrapie
prions have a zoonotic potential and raise new questions about the possible link
between animal and human prions.
Research Project: TRANSMISSION, DIFFERENTIATION, AND PATHOBIOLOGY OF
TRANSMISSIBLE SPONGIFORM ENCEPHALOPATHIES
Title: Transmission of scrapie prions to primate after an extended silent
incubation period
Authors
item Comoy, Emmanuel - item Mikol, Jacqueline - item Luccantoni-Freire,
Sophie - item Correia, Evelyne - item Lescoutra-Etchegaray, Nathalie - item
Durand, Valérie - item Dehen, Capucine - item Andreoletti, Olivier - item
Casalone, Cristina - item Richt, Juergen item Greenlee, Justin item Baron,
Thierry - item Benestad, Sylvie - item Hills, Bob - item Brown, Paul - item
Deslys, Jean-Philippe -
Submitted to: Scientific Reports Publication Type: Peer Reviewed Journal
Publication Acceptance Date: May 28, 2015 Publication Date: June 30, 2015
Citation: Comoy, E.E., Mikol, J., Luccantoni-Freire, S., Correia, E.,
Lescoutra-Etchegaray, N., Durand, V., Dehen, C., Andreoletti, O., Casalone, C.,
Richt, J.A., Greenlee, J.J., Baron, T., Benestad, S., Brown, P., Deslys, J.
2015. Transmission of scrapie prions to primate after an extended silent
incubation period. Scientific Reports. 5:11573.
Interpretive Summary: The transmissible spongiform encephalopathies (also
called prion diseases) are fatal neurodegenerative diseases that affect animals
and humans. The agent of prion diseases is a misfolded form of the prion protein
that is resistant to breakdown by the host cells. Since all mammals express
prion protein on the surface of various cells such as neurons, all mammals are,
in theory, capable of replicating prion diseases. One example of a prion
disease, bovine spongiform encephalopathy (BSE; also called mad cow disease),
has been shown to infect cattle, sheep, exotic undulates, cats, non-human
primates, and humans when the new host is exposed to feeds or foods contaminated
with the disease agent. The purpose of this study was to test whether non-human
primates (cynomologous macaque) are susceptible to the agent of sheep scrapie.
After an incubation period of approximately 10 years a macaque developed
progressive clinical signs suggestive of neurologic disease. Upon postmortem
examination and microscopic examination of tissues, there was a widespread
distribution of lesions consistent with a transmissible spongiform
encephalopathy. This information will have a scientific impact since it is the
first study that demonstrates the transmission of scrapie to a non-human primate
with a close genetic relationship to humans. This information is especially
useful to regulatory officials and those involved with risk assessment of the
potential transmission of animal prion diseases to humans. Technical Abstract:
Classical bovine spongiform encephalopathy (c-BSE) is an animal prion disease
that also causes variant Creutzfeldt-Jakob disease in humans. Over the past
decades, c-BSE's zoonotic potential has been the driving force in establishing
extensive protective measures for animal and human health.
*** In complement to the recent demonstration that humanized mice are
susceptible to scrapie, we report here the first observation of direct
transmission of a natural classical scrapie isolate to a macaque after a 10-year
incubation period. Neuropathologic examination revealed all of the features of a
prion disease: spongiform change, neuronal loss, and accumulation of PrPres
throughout the CNS.
*** This observation strengthens the questioning of the harmlessness of
scrapie to humans, at a time when protective measures for human and animal
health are being dismantled and reduced as c-BSE is considered controlled and
being eradicated.
*** Our results underscore the importance of precautionary and protective
measures and the necessity for long-term experimental transmission studies to
assess the zoonotic potential of other animal prion strains.
Saturday, April 23, 2016
Prion 2016 Tokyo
SCRAPIE WS-01: Prion diseases in animals and zoonotic potential 2016
Prion. 10:S15-S21. 2016 ISSN: 1933-6896 printl 1933-690X online
Thursday, April 07, 2016
What is the risk of chronic wasting disease being introduced into Great
Britain? An updated Qualitative Risk Assessment March 2016
Sheep and cattle may be exposed to CWD via common grazing areas with
affected deer but so far, appear to be poorly susceptible to mule deer CWD
(Sigurdson, 2008).
***In contrast, cattle are highly susceptible to white-tailed deer CWD and
mule deer CWD in experimental conditions but no natural CWD infections in cattle
have been reported (Sigurdson, 2008; Hamir et al., 2006). It is not known how
susceptible humans are to CWD but given that the prion can be present in muscle,
it is likely that humans have been exposed to the agent via consumption of
venison (Sigurdson, 2008). Initial experimental research, however, suggests that
human susceptibility to CWD is low and there may be a robust species barrier for
CWD transmission to humans (Sigurdson, 2008). It is apparent, though, that CWD
is affecting wild and farmed cervid populations in endemic areas with some deer
populations decreasing as a result.
snip...
For the purpose of the qualitative risk assessment developed here it is
necessary to estimate the probability that a 30-ml bottle of lure contains urine
from an infected deer. This requires an estimate of the proportion of deer herds
in the USA which are infected with CWD together with the within herd prevalence.
The distribution map of CWD in US shows it is present mainly in central
states (Figure 1). However, Virginia in the east of the country has recorded
seven recent cases of CWD (Anon 2015a). Some US manufacturers claim to take
steps to prevent urine being taken from infected animals eg by sourcing from
farms where the deer are randomly tested for CWD (Anon 2015a). However, if
disease is already present and testing is not carried out regularly, captive
populations are not necessarily disease free (Strausser 2014). Urine-based deer
lures have been known to be collected from domestic white-tailed deer herds and
therefore there is a recognised risk. This is reflected by 6 US States which
have
14
banned the use of natural deer urine for lures, as the deer urine may be
sourced from CWD-endemic areas in the USA as well as from areas free of CWD. For
example, the US State of Virginia is banning the use of urine-based deer lures
on July 2015 and Vermont from 2016 due to the risk of spread of CWD. Alaska
banned their use in 2012 (Anon 2015a). Pennsylvania Game Commission has banned
urine-based deer lures and acknowledged that there is no way to detect their use
(Strausser 2014). On the basis of unpublished data (J. Manson, Pers. Comm.) it
appears that up to 50% of deer herds can be infected with 80-90% of animals
infected within some herds.
*** It is therefore assumed that probability that a 30-ml bottle of deer
urine lure imported from the USA is sources from an infected deer is medium.
SNIP...
In the USA, under the Food and Drug Administration’s BSE Feed Regulation
(21 CFR 589.2000) most material (exceptions include milk, tallow, and gelatin)
from deer and elk is prohibited for use in feed for ruminant animals. With
regards to feed for non-ruminant animals, under FDA law, CWD positive deer may
not be used for any animal feed or feed ingredients. ***For elk and deer
considered at high risk for CWD, the FDA recommends that these animals do not
enter the animal feed system. ***However, this recommendation is guidance and
not a requirement by law.
***Animals considered at high risk for CWD include:
***1) animals from areas declared to be endemic for CWD and/or to be CWD
eradication zones and
***2) deer and elk that at some time during the 60-month period prior to
slaughter were in a captive herd that contained a CWD-positive animal.
***Therefore, in the USA, materials from cervids other than CWD positive
animals may be used in animal feed and feed ingredients for non-ruminants. The
amount of animal PAP that is of deer and/or elk origin imported from the USA to
GB cannot be determined, however, as it is not specified in TRACES. It may
constitute a small percentage of the very low tonnage of non-fish origin
processed animal proteins that were imported from US into GB.
*** Overall, therefore, it is considered there is a greater than
negligible risk that (non-ruminant) animal feed and pet food containing deer
and/or elk protein is imported into GB. There is uncertainty associated with
this estimate given the lack of data on the amount of deer and/or elk protein
possibly being imported in these products.
SNIP...
Summary and MORE HERE ;
What is the risk of chronic wasting disease being introduced into Great
Britain? An updated Qualitative Risk Assessment March 2016
Tuesday, April 12, 2016
The first detection of Chronic Wasting Disease (CWD) in Europe
Saturday, January 31, 2015
European red deer (Cervus elaphus elaphus) are susceptible to Bovine
Spongiform Encephalopathy BSE by Oral Alimentary route
I strenuously once again urge the FDA and its industry constituents, to
make it MANDATORY that all ruminant feed be banned to all ruminants, and this
should include all cervids as soon as possible for the following reasons...
======
In the USA, under the Food and Drug Administrations BSE Feed Regulation
(21 CFR 589.2000) most material (exceptions include milk, tallow, and gelatin)
from deer and elk is prohibited for use in feed for ruminant animals. With
regards to feed for non-ruminant animals, under FDA law, CWD positive deer may
not be used for any animal feed or feed ingredients. For elk and deer considered
at high risk for CWD, the FDA recommends that these animals do not enter the
animal feed system.
***However, this recommendation is guidance and not a requirement by law.
======
31 Jan 2015 at 20:14 GMT
*** Ruminant feed ban for cervids in the United States? ***
31 Jan 2015 at 20:14 GMT
see Singeltary comment ;
Monday, March 28, 2016
National Scrapie Eradication Program February 2016 Monthly Report
Docket No. FDA-2003-D-0432 (formerly 03D-0186) Use of Material from Deer
and Elk in Animal Feed Singeltary Submission
Greetings again FDA and Mr. Pritchett et al,
I would kindly like to comment on ;
Docket No. FDA-2003-D-0432 (formerly 03D-0186) Use of Material from Deer
and Elk in Animal Feed Singeltary Submission
#158
Guidance for Industry
Use of Material from Deer and Elk in Animal Feed
This version of the guidance replaces the version made available
September15, 2003.
This document has been revised to update the docket number, contact
information, and standard disclosures. Submit comments on this guidance at any
time.
Submit electronic comments to http://www.regulations.gov. Submit written
comments to the Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852. All comments
should be identified with the Docket No. FDA-2003-D-0432 (formerly 03D-0186).
For further information regarding this guidance, contact Burt Pritchett,
Center for Veterinary Medicine (HFV-222), Food and Drug Administration, 7519
Standish Place, Rockville, MD 20855, 240-402-6276, E-mail:
burt.pritchett@fda.hhs.gov.
Additional copies of this guidance document may be requested from the
Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and
Drug Administration, 7519 Standish Place, Rockville, MD 20855, and may be viewed
on the Internet at either http://www.fda.gov/AnimalVeterinary/default.htm
or http://www.regulations.gov.
U.S. Department of Health and Human Services Food and Drug Administration
Center for Veterinary Medicine March 2016
Contains Nonbinding Recommendations
2
Guidance for Industry Use of Material from Deer and Elk in Animal Feed
This guidance represents the current thinking of the Food and Drug
Administration (FDA or Agency) on this topic. It does not establish any rights
for any person and is not binding on FDA or the public. You can use an
alternative approach if it satisfies the requirements of the applicable statutes
and regulations. To discuss an alternative approach, contact the FDA office
responsible for this guidance as listed on the title page.
I. Introduction
Under FDA’s BSE feed regulation (21 CFR 589.2000) most material from deer
and elk is prohibited for use in feed for ruminant animals. This guidance
document describes FDA’s recommendations regarding the use in all animal feed of
all material from deer and elk that are positive for Chronic Wasting Disease
(CWD) or are considered at high risk for CWD. The potential risks from CWD to
humans or non-cervid animals such as poultry and swine are not well understood.
However, because of recent recognition that CWD is spreading rapidly in
white-tailed deer, and because CWD’s route of transmission is poorly understood,
FDA is making recommendations regarding the use in animal feed of rendered
materials from deer and elk that are CWD-positive or that are at high risk for
CWD.
In general, FDA’s guidance documents do not establish legally enforceable
responsibilities. Instead, guidances describe the Agency’s current thinking on a
topic and should be viewed only as recommendations, unless specific regulatory
or statutory requirements are cited. The use of the word should in Agency
guidances means that something is suggested or recommended, but not required.
II. Background
CWD is a neurological (brain) disease of farmed and wild deer and elk that
belong in the animal family cervidae (cervids). Only deer and elk are known to
be susceptible to CWD by natural transmission. The disease has been found in
farmed and wild mule deer, white-tailed deer, North American elk, and in farmed
black-tailed deer. CWD belongs to a family of animal and human diseases called
transmissible spongiform encephalopathies (TSEs). These include bovine
spongiform encephalopathy (BSE or “mad cow” disease) in cattle; scrapie in sheep
and goats; and classical and variant Creutzfeldt-Jakob diseases (CJD and vCJD)
in humans. There is no known treatment for these diseases, and there is no
vaccine to prevent them. In addition, although validated postmortem diagnostic
tests are available, there are no validated diagnostic tests for CWD that can be
used to test for the disease in live animals.
Contains Nonbinding Recommendations
III. Use in animal feed of material from CWD-positive deer and elk
Material from CWD-positive animals may not be used in any animal feed or
feed ingredients. Pursuant to Sec. 402(a)(5) of the Federal Food, Drug, and
Cosmetic Act, animal feed and feed ingredients containing material from a
CWD-positive animal would be considered adulterated. FDA recommends that any
such adulterated feed or feed ingredients be recalled or otherwise removed from
the marketplace.
IV. Use in animal feed of material from deer and elk considered at high
risk for CWD Deer and elk considered at high risk for CWD include: (1) animals
from areas declared by State officials to be endemic for CWD and/or to be CWD
eradication zones; and (2) deer and elk that at some time during the 60-month
period immediately before the time of slaughter were in a captive herd that
contained a CWD-positive animal.
FDA recommends that materials from deer and elk considered at high risk
for CWD no longer be entered into the animal feed system. Under present
circumstances, FDA is not recommending that feed made from deer and elk from a
non-endemic area be recalled if a State later declares the area endemic for CWD
or a CWD eradication zone. In addition, at this time, FDA is not recommending
that feed made from deer and elk believed to be from a captive herd that
contained no CWD-positive animals be recalled if that herd is subsequently found
to contain a CWD-positive animal.
V. Use in animal feed of material from deer and elk NOT considered at high
risk for CWD FDA continues to consider materials from deer and elk NOT
considered at high risk for CWD to be acceptable for use in NON-RUMINANT animal
feeds in accordance with current agency regulations, 21 CFR 589.2000. Deer and
elk not considered at high risk include: (1) deer and elk from areas not
declared by State officials to be endemic for CWD and/or to be CWD eradication
zones; and (2) deer and elk that were not at some time during the 60-month
period immediately before the time of slaughter in a captive herd that contained
a CWD-positive animal.
3
Docket No. FDA-2003-D-0432 (formerly 03D-0186) Use of Material from Deer
and Elk in Animal Feed Singeltary Submission
Greetings again FDA and Mr. Pritchett et al,
MY comments and source reference of sound science on this very important
issue are as follows ;
Docket No. FDA-2003-D-0432 (formerly 03D-0186) Use of Material from Deer
and Elk in Animal Feed Singeltary Submission
I kindly wish to once again submit to Docket No. FDA-2003-D-0432 (formerly
03D-0186) Use of Material from Deer and Elk in Animal Feed.
Thank you kindly for allowing me to comment again, ...and again...and
again, on a topic so important, why it is ‘NON-BINDING’ is beyond me.
this should have been finalized and made ‘BINDING’ or MANDATORY OVER A
DECADE AGO.
but here lay the problem, once made ‘BINDING’ or ‘MANDATORY’, it is still
nothing but ink on paper.
we have had a mad cow feed ban in place since August 1997, and since then,
literally 100s of millions of pounds BANNED MAD COW FEED has been sent out to
commerce and fed out (see reference materials).
ENFORCEMENT OF SAID BINDING REGULATIONS HAS FAILED US TOO MANY TIMES.
so, in my opinion, any non-binding or voluntary regulations will not work,
and to state further, ‘BINDING’ or MANDATORY regulations will not work unless
enforced.
with that said, we know that Chronic Wasting Disease CWD TSE Prion easily
transmits to other cervid through the oral route.
the old transmission studies of BSE TSE floored scientist once they
figured out what they had, and please don’t forget about those mink that were
fed 95%+ dead stock downer cow, that all came down with TME. please see ;
It is clear that the designing scientists must also have shared Mr
Bradleys surprise at the results because all the dose levels right down to 1
gram triggered infection.
it is clear that the designing scientists must have also shared Mr
Bradleys surprise at the results because all the dose levels right down to 1
gram triggered infection.
Evidence That Transmissible Mink Encephalopathy Results from Feeding
Infected Cattle
Over the next 8-10 weeks, approximately 40% of all the adult mink on the
farm died from TME.
snip...
The rancher was a ''dead stock'' feeder using mostly (>95%) downer or
dead dairy cattle...
*** PLEASE SEE THIS URGENT UPDATE ON CWD AND FEED ANIMAL PROTEIN ***
Sunday, March 20, 2016
Docket No. FDA-2003-D-0432 (formerly 03D-0186) Use of Material from Deer
and Elk in Animal Feed ***UPDATED MARCH 2016*** Singeltary Submission
*** Infectious agent of sheep scrapie may persist in the environment for at
least 16 years ***
Gudmundur Georgsson1, Sigurdur Sigurdarson2 and Paul Brown3
Using in vitro prion replication for high sensitive detection of prions
and prionlike proteins and for understanding mechanisms of transmission.
Claudio Soto
Mitchell Center for Alzheimer's diseases and related Brain disorders,
Department of Neurology, University of Texas Medical School at Houston.
Prion and prion-like proteins are misfolded protein aggregates with the
ability to selfpropagate to spread disease between cells, organs and in some
cases across individuals. I n T r a n s m i s s i b l e s p o n g i f o r m
encephalopathies (TSEs), prions are mostly composed by a misfolded form of the
prion protein (PrPSc), which propagates by transmitting its misfolding to the
normal prion protein (PrPC). The availability of a procedure to replicate prions
in the laboratory may be important to study the mechanism of prion and
prion-like spreading and to develop high sensitive detection of small quantities
of misfolded proteins in biological fluids, tissues and environmental samples.
Protein Misfolding Cyclic Amplification (PMCA) is a simple, fast and efficient
methodology to mimic prion replication in the test tube. PMCA is a platform
technology that may enable amplification of any prion-like misfolded protein
aggregating through a seeding/nucleation process. In TSEs, PMCA is able to
detect the equivalent of one single molecule of infectious PrPSc and propagate
prions that maintain high infectivity, strain properties and species
specificity. Using PMCA we have been able to detect PrPSc in blood and urine of
experimentally infected animals and humans affected by vCJD with high
sensitivity and specificity. Recently, we have expanded the principles of PMCA
to amplify amyloid-beta (Aβ) and alphasynuclein (α-syn) aggregates implicated in
Alzheimer's and Parkinson's diseases, respectively. Experiments are ongoing to
study the utility of this technology to detect Aβ and α-syn aggregates in
samples of CSF and blood from patients affected by these diseases.
=========================
***Recently, we have been using PMCA to study the role of environmental
prion contamination on the horizontal spreading of TSEs. These experiments have
focused on the study of the interaction of prions with plants and
environmentally relevant surfaces. Our results show that plants (both leaves and
roots) bind tightly to prions present in brain extracts and excreta (urine and
feces) and retain even small quantities of PrPSc for long periods of time.
Strikingly, ingestion of prioncontaminated leaves and roots produced disease
with a 100% attack rate and an incubation period not substantially longer than
feeding animals directly with scrapie brain homogenate. Furthermore, plants can
uptake prions from contaminated soil and transport them to different parts of
the plant tissue (stem and leaves). Similarly, prions bind tightly to a variety
of environmentally relevant surfaces, including stones, wood, metals, plastic,
glass, cement, etc. Prion contaminated surfaces efficiently transmit prion
disease when these materials were directly injected into the brain of animals
and strikingly when the contaminated surfaces were just placed in the animal
cage. These findings demonstrate that environmental materials can efficiently
bind infectious prions and act as carriers of infectivity, suggesting that they
may play an important role in the horizontal transmission of the disease.
========================
Since its invention 13 years ago, PMCA has helped to answer fundamental
questions of prion propagation and has broad applications in research areas
including the food industry, blood bank safety and human and veterinary disease
diagnosis.
see ;
with CWD TSE Prions, I am not sure there is any absolute yet, other than
what we know with transmission studies, and we know tse prion kill, and tse
prion are bad. science shows to date, that indeed soil, dirt, some better than
others, can act as a carrier. same with objects, farm furniture. take it with
how ever many grains of salt you wish, or not. if load factor plays a role in
the end formula, then everything should be on the table, in my opinion. see
;
***Recently, we have been using PMCA to study the role of environmental
prion contamination on the horizontal spreading of TSEs. These experiments have
focused on the study of the interaction of prions with plants and
environmentally relevant surfaces. Our results show that plants (both leaves and
roots) bind tightly to prions present in brain extracts and excreta (urine and
feces) and retain even small quantities of PrPSc for long periods of time.
Strikingly, ingestion of prioncontaminated leaves and roots produced disease
with a 100% attack rate and an incubation period not substantially longer than
feeding animals directly with scrapie brain homogenate. Furthermore, plants can
uptake prions from contaminated soil and transport them to different parts of
the plant tissue (stem and leaves). Similarly, prions bind tightly to a variety
of environmentally relevant surfaces, including stones, wood, metals, plastic,
glass, cement, etc. Prion contaminated surfaces efficiently transmit prion
disease when these materials were directly injected into the brain of animals
and strikingly when the contaminated surfaces were just placed in the animal
cage. These findings demonstrate that environmental materials can efficiently
bind infectious prions and act as carriers of infectivity, suggesting that they
may play an important role in the horizontal transmission of the disease.
Since its invention 13 years ago, PMCA has helped to answer fundamental
questions of prion propagation and has broad applications in research areas
including the food industry, blood bank safety and human and veterinary disease
diagnosis.
see ;
Oral Transmissibility of Prion Disease Is Enhanced by Binding to Soil
Particles
Author Summary
Transmissible spongiform encephalopathies (TSEs) are a group of incurable
neurological diseases likely caused by a misfolded form of the prion protein.
TSEs include scrapie in sheep, bovine spongiform encephalopathy (‘‘mad cow’’
disease) in cattle, chronic wasting disease in deer and elk, and
Creutzfeldt-Jakob disease in humans. Scrapie and chronic wasting disease are
unique among TSEs because they can be transmitted between animals, and the
disease agents appear to persist in environments previously inhabited by
infected animals. Soil has been hypothesized to act as a reservoir of
infectivity and to bind the infectious agent. In the current study, we orally
dosed experimental animals with a common clay mineral, montmorillonite, or whole
soils laden with infectious prions, and compared the transmissibility to unbound
agent. We found that prions bound to montmorillonite and whole soils remained
orally infectious, and, in most cases, increased the oral transmission of
disease compared to the unbound agent. The results presented in this study
suggest that soil may contribute to environmental spread of TSEs by increasing
the transmissibility of small amounts of infectious agent in the
environment.
tse prion soil
Wednesday, December 16, 2015
Objects in contact with classical scrapie sheep act as a reservoir for
scrapie transmission
The sources of dust borne prions are unknown but it seems reasonable to
assume that faecal, urine, skin, parturient material and saliva-derived prions
may contribute to this mobile environmental reservoir of infectivity. This work
highlights a possible transmission route for scrapie within the farm
environment, and this is likely to be paralleled in CWD which shows strong
similarities with scrapie in terms of prion dissemination and disease
transmission. The data indicate that the presence of scrapie prions in dust is
likely to make the control of these diseases a considerable challenge.
>>>Particle-associated PrPTSE molecules may migrate from locations
of deposition via transport processes affecting soil particles, including
entrainment in and movement with air and overland flow. <<<
Fate of Prions in Soil: A Review
Christen B. Smith, Clarissa J. Booth, and Joel A. Pedersen*
Several reports have shown that prions can persist in soil for several
years. Significant interest remains in developing methods that could be applied
to degrade PrPTSE in naturally contaminated soils. Preliminary research suggests
that serine proteases and the microbial consortia in stimulated soils and
compost may partially degrade PrPTSE. Transition metal oxides in soil (viz.
manganese oxide) may also mediate prion inactivation. Overall, the effect of
prion attachment to soil particles on its persistence in the environment is not
well understood, and additional study is needed to determine its implications on
the environmental transmission of scrapie and CWD.
P.161: Prion soil binding may explain efficient horizontal CWD transmission
Conclusion. Silty clay loam exhibits highly efficient prion binding,
inferring a durable environmental reservoir, and an efficient mechanism for
indirect horizontal CWD transmission.
>>>Another alternative would be an absolute prohibition on the
movement of deer within the state for any purpose. While this alternative would
significantly reduce the potential spread of CWD, it would also have the
simultaneous effect of preventing landowners and land managers from implementing
popular management strategies involving the movement of deer, and would deprive
deer breeders of the ability to engage in the business of buying and selling
breeder deer. Therefore, this alternative was rejected because the department
determined that it placed an avoidable burden on the regulated
community.<<<
Wednesday, December 16, 2015
Objects in contact with classical scrapie sheep act as a reservoir for
scrapie transmission
Objects in contact with classical scrapie sheep act as a reservoir for
scrapie transmission
Timm Konold1*, Stephen A. C. Hawkins2, Lisa C. Thurston3, Ben C. Maddison4,
Kevin C. Gough5, Anthony Duarte1 and Hugh A. Simmons1
1 Animal Sciences Unit, Animal and Plant Health Agency Weybridge,
Addlestone, UK, 2 Pathology Department, Animal and Plant Health Agency
Weybridge, Addlestone, UK, 3 Surveillance and Laboratory Services, Animal and
Plant Health Agency Penrith, Penrith, UK, 4 ADAS UK, School of Veterinary
Medicine and Science, University of Nottingham, Sutton Bonington, UK, 5 School
of Veterinary Medicine and Science, University of Nottingham, Sutton Bonington,
UK
Classical scrapie is an environmentally transmissible prion disease of
sheep and goats. Prions can persist and remain potentially infectious in the
environment for many years and thus pose a risk of infecting animals after
re-stocking. In vitro studies using serial protein misfolding cyclic
amplification (sPMCA) have suggested that objects on a scrapie affected sheep
farm could contribute to disease transmission. This in vivo study aimed to
determine the role of field furniture (water troughs, feeding troughs, fencing,
and other objects that sheep may rub against) used by a scrapie-infected sheep
flock as a vector for disease transmission to scrapie-free lambs with the prion
protein genotype VRQ/VRQ, which is associated with high susceptibility to
classical scrapie. When the field furniture was placed in clean accommodation,
sheep became infected when exposed to either a water trough (four out of five)
or to objects used for rubbing (four out of seven). This field furniture had
been used by the scrapie-infected flock 8 weeks earlier and had previously been
shown to harbor scrapie prions by sPMCA. Sheep also became infected (20 out of
23) through exposure to contaminated field furniture placed within pasture not
used by scrapie-infected sheep for 40 months, even though swabs from this
furniture tested negative by PMCA. This infection rate decreased (1 out of 12)
on the same paddock after replacement with clean field furniture. Twelve grazing
sheep exposed to field furniture not in contact with scrapie-infected sheep for
18 months remained scrapie free. The findings of this study highlight the role
of field furniture used by scrapie-infected sheep to act as a reservoir for
disease re-introduction although infectivity declines considerably if the field
furniture has not been in contact with scrapie-infected sheep for several
months. PMCA may not be as sensitive as VRQ/VRQ sheep to test for environmental
contamination.
snip...
Discussion
Classical scrapie is an environmentally transmissible disease because it
has been reported in naïve, supposedly previously unexposed sheep placed in
pastures formerly occupied by scrapie-infected sheep (4, 19, 20). Although the
vector for disease transmission is not known, soil is likely to be an important
reservoir for prions (2) where – based on studies in rodents – prions can adhere
to minerals as a biologically active form (21) and remain infectious for more
than 2 years (22). Similarly, chronic wasting disease (CWD) has re-occurred in
mule deer housed in paddocks used by infected deer 2 years earlier, which was
assumed to be through foraging and soil consumption (23).
Our study suggested that the risk of acquiring scrapie infection was
greater through exposure to contaminated wooden, plastic, and metal surfaces via
water or food troughs, fencing, and hurdles than through grazing. Drinking from
a water trough used by the scrapie flock was sufficient to cause infection in
sheep in a clean building. Exposure to fences and other objects used for rubbing
also led to infection, which supported the hypothesis that skin may be a vector
for disease transmission (9). The risk of these objects to cause infection was
further demonstrated when 87% of 23 sheep presented with PrPSc in lymphoid
tissue after grazing on one of the paddocks, which contained metal hurdles, a
metal lamb creep and a water trough in contact with the scrapie flock up to 8
weeks earlier, whereas no infection had been demonstrated previously in sheep
grazing on this paddock, when equipped with new fencing and field furniture.
When the contaminated furniture and fencing were removed, the infection rate
dropped significantly to 8% of 12 sheep, with soil of the paddock as the most
likely source of infection caused by shedding of prions from the
scrapie-infected sheep in this paddock up to a week earlier.
This study also indicated that the level of contamination of field
furniture sufficient to cause infection was dependent on two factors: stage of
incubation period and time of last use by scrapie-infected sheep. Drinking from
a water trough that had been used by scrapie sheep in the predominantly
pre-clinical phase did not appear to cause infection, whereas infection was
shown in sheep drinking from the water trough used by scrapie sheep in the later
stage of the disease. It is possible that contamination occurred through
shedding of prions in saliva, which may have contaminated the surface of the
water trough and subsequently the water when it was refilled. Contamination
appeared to be sufficient to cause infection only if the trough was in contact
with sheep that included clinical cases. Indeed, there is an increased risk of
bodily fluid infectivity with disease progression in scrapie (24) and CWD (25)
based on PrPSc detection by sPMCA. Although ultraviolet light and heat under
natural conditions do not inactivate prions (26), furniture in contact with the
scrapie flock, which was assumed to be sufficiently contaminated to cause
infection, did not act as vector for disease if not used for 18 months, which
suggest that the weathering process alone was sufficient to inactivate prions.
PrPSc detection by sPMCA is increasingly used as a surrogate for
infectivity measurements by bioassay in sheep or mice. In this reported study,
however, the levels of PrPSc present in the environment were below the limit of
detection of the sPMCA method, yet were still sufficient to cause infection of
in-contact animals. In the present study, the outdoor objects were removed from
the infected flock 8 weeks prior to sampling and were positive by sPMCA at very
low levels (2 out of 37 reactions). As this sPMCA assay also yielded 2 positive
reactions out of 139 in samples from the scrapie-free farm, the sPMCA assay
could not detect PrPSc on any of the objects above the background of the assay.
False positive reactions with sPMCA at a low frequency associated with de novo
formation of infectious prions have been reported (27, 28). This is in contrast
to our previous study where we demonstrated that outdoor objects that had been
in contact with the scrapie-infected flock up to 20 days prior to sampling
harbored PrPSc that was detectable by sPMCA analysis [4 out of 15 reactions
(12)] and was significantly more positive by the assay compared to analogous
samples from the scrapie-free farm. This discrepancy could be due to the use of
a different sPMCA substrate between the studies that may alter the efficiency of
amplification of the environmental PrPSc. In addition, the present study had a
longer timeframe between the objects being in contact with the infected flock
and sampling, which may affect the levels of extractable PrPSc. Alternatively,
there may be potentially patchy contamination of this furniture with PrPSc,
which may have been missed by swabbing. The failure of sPMCA to detect
CWD-associated PrP in saliva from clinically affected deer despite confirmation
of infectivity in saliva-inoculated transgenic mice was associated with as yet
unidentified inhibitors in saliva (29), and it is possible that the sensitivity
of sPMCA is affected by other substances in the tested material. In addition,
sampling of amplifiable PrPSc and subsequent detection by sPMCA may be more
difficult from furniture exposed to weather, which is supported by the
observation that PrPSc was detected by sPMCA more frequently in indoor than
outdoor furniture (12). A recent experimental study has demonstrated that
repeated cycles of drying and wetting of prion-contaminated soil, equivalent to
what is expected under natural weathering conditions, could reduce PMCA
amplification efficiency and extend the incubation period in hamsters inoculated
with soil samples (30). This seems to apply also to this study even though the
reduction in infectivity was more dramatic in the sPMCA assays than in the sheep
model. Sheep were not kept until clinical end-point, which would have enabled us
to compare incubation periods, but the lack of infection in sheep exposed to
furniture that had not been in contact with scrapie sheep for a longer time
period supports the hypothesis that prion degradation and subsequent loss of
infectivity occurs even under natural conditions.
In conclusion, the results in the current study indicate that removal of
furniture that had been in contact with scrapie-infected animals should be
recommended, particularly since cleaning and decontamination may not effectively
remove scrapie infectivity (31), even though infectivity declines considerably
if the pasture and the field furniture have not been in contact with
scrapie-infected sheep for several months. As sPMCA failed to detect PrPSc in
furniture that was subjected to weathering, even though exposure led to
infection in sheep, this method may not always be reliable in predicting the
risk of scrapie infection through environmental contamination. These results
suggest that the VRQ/VRQ sheep model may be more sensitive than sPMCA for the
detection of environmentally associated scrapie, and suggest that extremely low
levels of scrapie contamination are able to cause infection in susceptible sheep
genotypes.
Keywords: classical scrapie, prion, transmissible spongiform
encephalopathy, sheep, field furniture, reservoir, serial protein misfolding
cyclic amplification
Wednesday, December 16, 2015
*** Objects in contact with classical scrapie sheep act as a reservoir for
scrapie transmission ***
*** Infectious agent of sheep scrapie may persist in the environment for at
least 16 years ***
Gudmundur Georgsson1, Sigurdur Sigurdarson2 and Paul Brown3
>>>Another alternative would be an absolute prohibition on the
movement of deer within the state for any purpose. While this alternative would
significantly reduce the potential spread of CWD, it would also have the
simultaneous effect of preventing landowners and land managers from implementing
popular management strategies involving the movement of deer, and would deprive
deer breeders of the ability to engage in the business of buying and selling
breeder deer. Therefore, this alternative was rejected because the department
determined that it placed an avoidable burden on the regulated
community.<<<
Circulation of prions within dust on a scrapie affected farm
Kevin C Gough1, Claire A Baker2, Hugh A Simmons3, Steve A Hawkins3 and Ben
C Maddison2*
Abstract
Prion diseases are fatal neurological disorders that affect humans and
animals. Scrapie of sheep/goats and Chronic Wasting Disease (CWD) of deer/elk
are contagious prion diseases where environmental reservoirs have a direct link
to the transmission of disease. Using protein misfolding cyclic amplification we
demonstrate that scrapie PrPSc can be detected within circulating dusts that are
present on a farm that is naturally contaminated with sheep scrapie. The
presence of infectious scrapie within airborne dusts may represent a possible
route of infection and illustrates the difficulties that may be associated with
the effective decontamination of such scrapie affected premises.
snip...
Discussion
We present biochemical data illustrating the airborne movement of scrapie
containing material within a contaminated farm environment. We were able to
detect scrapie PrPSc within extracts from dusts collected over a 70 day period,
in the absence of any sheep activity. We were also able to detect scrapie PrPSc
within dusts collected within pasture at 30 m but not at 60 m distance away from
the scrapie contaminated buildings, suggesting that the chance of contamination
of pasture by scrapie contaminated dusts decreases with distance from
contaminated farm buildings. PrPSc amplification by sPMCA has been shown to
correlate with infectivity and amplified products have been shown to be
infectious [14,15]. These experiments illustrate the potential for low dose
scrapie infectivity to be present within such samples. We estimate low ng levels
of scrapie positive brain equivalent were deposited per m2 over 70 days, in a
barn previously occupied by sheep affected with scrapie. This movement of dusts
and the accumulation of low levels of scrapie infectivity within this
environment may in part explain previous observations where despite stringent
pen decontamination regimens healthy lambs still became scrapie infected after
apparent exposure from their environment alone [16]. The presence of sPMCA
seeding activity and by inference, infectious prions within dusts, and their
potential for airborne dissemination is highly novel and may have implications
for the spread of scrapie within infected premises. The low level circulation
and accumulation of scrapie prion containing dust material within the farm
environment will likely impede the efficient decontamination of such scrapie
contaminated buildings unless all possible reservoirs of dust are removed.
Scrapie containing dusts could possibly infect animals during feeding and
drinking, and respiratory and conjunctival routes may also be involved. It has
been demonstrated that scrapie can be efficiently transmitted via the nasal
route in sheep [17], as is also the case for CWD in both murine models and in
white tailed deer [18-20].
The sources of dust borne prions are unknown but it seems reasonable to
assume that faecal, urine, skin, parturient material and saliva-derived prions
may contribute to this mobile environmental reservoir of infectivity. This work
highlights a possible transmission route for scrapie within the farm
environment, and this is likely to be paralleled in CWD which shows strong
similarities with scrapie in terms of prion dissemination and disease
transmission. The data indicate that the presence of scrapie prions in dust is
likely to make the control of these diseases a considerable challenge.
>>>Another alternative would be an absolute prohibition on the
movement of deer within the state for any purpose. While this alternative would
significantly reduce the potential spread of CWD, it would also have the
simultaneous effect of preventing landowners and land managers from implementing
popular management strategies involving the movement of deer, and would deprive
deer breeders of the ability to engage in the business of buying and selling
breeder deer. Therefore, this alternative was rejected because the department
determined that it placed an avoidable burden on the regulated
community.<<<
Monday, April 25, 2016
Arkansas AGFC Phase 2 sampling reveals CWD positive deer in Madison and
Pope counties
Tuesday, April 19, 2016
Arkansas First Phase of CWD sampling reveals 23 percent prevalence rate in
focal area With 82 Confirmed to Date
Friday, April 08, 2016
Arkansas AGFC Chronic Wasting Disease CWD TSE Prion Confirms 23 Additional
Cases Total At 79 To Date
Friday, April 01, 2016
ARKANSAS CHRONIC WASTING DISEASE CWD TSE PRION CASES EXPLODE BY 27 NEW
CASES WITH 50 CASES TOTAL TO DATE
Tuesday, May 03, 2016
*** Arkansas Chronic Wasting Disease CWD TSE Prion and Elk Restoration
Project and Hunkering Down in the BSE Situation Room USDA 1998 ***
Friday, April 22, 2016
COLORADO CHRONIC WASTING DISEASE CWD TSE PRION SURVEILLANCE AND TESTING
PROGRAM IS MINIMAL AND LIMITED
Friday, April 22, 2016
Missouri MDC finds seven new cases of Chronic Wasting Disease CWD during
past season testing
Wednesday, April 20, 2016
UTAH CHRONIC WASTING DISEASE CWD TSE PRION SURVEILLANCE AND TESTING PROGRAM
70 mule deer and two elk have tested positive
WISCONSIN CWD CASES OUT OF CONTROL
Wednesday, March 16, 2016 Wisconsin CWD sample survey 2015 confirms 290
cases of Chronic Wasting Disease TSE Prion
KANSAS CWD CASES ALARMING
Wednesday, March 02, 2016 Kansas Chronic Wasting Disease CWD TSE Prion 52
cases 2015 updated report 'ALARMING'
Tuesday, February 02, 2016
Illinois six out of 19 deer samples tested positive for CWD in the Oswego
zone of Kendall County
Friday, April 22, 2016
*** Texas Scrapie Confirmed in a Hartley County Sheep where CWD was
detected in a Mule Deer
Monday, April 25, 2016
TEXAS Nilgai Exotic Antelope Let Loose for Trophy Hunts Blamed for
Spreading Cattle Tick Fever, and what about CWD TSE Prion Disease ?
Saturday, April 02, 2016
TEXAS TAHC BREAKS IT'S SILENCE WITH TWO MORE CASES CWD CAPTIVE DEER
BRINGING TOTAL TO 10 CAPTIVES REPORTED TO DATE
Friday, February 26, 2016
TEXAS Hartley County Mule Deer Tests Positive for Chronic Wasting Disease
CWD TSE Prion
Friday, February 05, 2016
TEXAS NEW CHRONIC WASTING DISEASE CWD CASE DISCOVERD AT CAPTIVE DEER
RELEASE SITE
Saturday, January 23, 2016
Texas new interim rule governing Deer Management Permit (DMP) activities as
part of the state’s response to the detection of chronic wasting disease (CWD)
in captive deer populations
Sunday, January 17, 2016
Texas 10,000 deer in Texas tested for deadly disease CWD TSE, but not
tested much in the most logical place, the five-mile radius around the Medina
County captive-deer facility where it was discovered
Friday, January 15, 2016
TEXAS PARKS & WILDLIFE CWD Ante-Mortem Testing Symposium Texas Disposal
Systems Events Pavilion January 12, 2016
Sunday, January 10, 2016
TEXAS MEDIA REPORTING A BIT OF GOOD NEWS ON CWD TESTING SO FAR INSTEAD OF
TAHC which is still mum, still refusing timely updates to the public TSE PRION
DISEASE
Tuesday, December 29, 2015
*** TEXAS MONTHLY CHRONIC WASTING DISEASE CWD JANUARY 2016 DEER BREEDERS
STILL DON'T GET IT $
Chronic Wasting Unease
*** The emergence of a deadly disease has wildlife officials and deer
breeders eyeing each other suspiciously. ***
Monday, November 16, 2015
*** TEXAS PARKS AND WILDLIFE DEPARTMENT EXECUTIVE DIRECTOR ORDER NO.
015-006
*** Chronic Wasting Disease (CWD) immediate danger to the white-tailed deer
and mule deer resources of Texas
Saturday, November 14, 2015
TEXAS CAPTIVE BREEDER CHRONIC WASTING DISEASE CWD 2 MORE SUSPECTS DECTECTED
BRINGING NUMBER TO 7 DETECTED IN CAPTIVE BREEDER (if/when the last two are
confirmed).
Thursday, November 05, 2015
*** TPW Commission Adopts Interim Deer Breeder Movement Rules
Friday, October 09, 2015
Texas TWA Chronic Wasting Disease TSE Prion Webinars and Meeting October
2015
Saturday, October 03, 2015
TEXAS CHRONIC WASTING DISEASE CWD TSE PRION GOD MUST NOT BE A TEXAN 2002 TO
2015
Thursday, September 24, 2015
TEXAS Hunters Asked to Submit Samples for Chronic Wasting Disease CWD TSE
Prion Testing
*** I cannot stress enough to all of you, for the sake of your family and
mine, before putting anything in the freezer, have those deer tested for CWD.
...terry
***raw and uncut
Sunday, August 23, 2015
TAHC Chronic Wasting Disease CWD TSE Prion and how to put lipstick on a pig
and take her to the dance in Texas
Friday, August 07, 2015
*** Texas CWD Captive, and then there were 4 ?
Thursday, August 06, 2015
*** WE HAVE LOST TEXAS TO CWD TASK FORCE CATERING TO INDUSTRY
Tuesday, July 21, 2015
*** Texas CWD Medina County Herd Investigation Update July 16, 2015 ***
Thursday, July 09, 2015
TEXAS Chronic Wasting Disease (CWD) Herd Plan for Trace-Forward Exposed
Herd with Testing of Exposed Animals
Wednesday, July 01, 2015
TEXAS Chronic Wasting Disease Detected in Medina County Captive Deer
Wednesday, March 18, 2015
Chronic Wasting Disease CWD Confirmed Texas Trans Pecos March 18,
2015
Wednesday, March 25, 2015
Chronic Wasting Disease CWD Cases Confirmed In New Mexico 2013 and 2014
UPDATE 2015
Thursday, May 02, 2013
*** Chronic Wasting Disease (CWD) Texas Important Update on OBEX ONLY
TEXTING
Monday, February 11, 2013
TEXAS CHRONIC WASTING DISEASE CWD Four New Positives Found in Trans Pecos
Tuesday, July 10, 2012
Chronic Wasting Disease Detected in Far West Texas
Monday, March 26, 2012
Texas Prepares for Chronic Wasting Disease CWD Possibility in Far West
Texas
2011 – 2012
Friday, October 28, 2011
CWD Herd Monitoring Program to be Enforced Jan. 2012 TEXAS
Greetings TAHC et al,
A kind greetings from Bacliff, Texas.
In reply to ;
Texas Animal Health Commission (TAHC) Announcement October 27, 2011
I kindly submit the following ;
***for anyone interested, here is some history of CWD along the Texas, New
Mexico border, and my attempt to keep up with it...terry
snip...
see history CWD Texas, New Mexico Border ;
Monday, March 26, 2012
3 CASES OF CWD FOUND NEW MEXICO MULE DEER SEVERAL MILES FROM TEXAS BORDER
Sunday, October 04, 2009
CWD NEW MEXICO SPREADING SOUTH TO TEXAS 2009 2009 Summary of Chronic
Wasting Disease in New Mexico New Mexico Department of Game and Fish
I could go on, for more see ;
Thursday, March 31, 2016
*** Chronic Wasting Disease CWD TSE Prion Roundup USA April 1, 2016
***
Saturday, April 16, 2016
APHIS [Docket No. APHIS-2016-0029] Secretary's Advisory Committee on Animal
Health; Meeting May 2, 2016, and June 16, 2016 Singeltary Submission
Tuesday, April 19, 2016
Docket No. FDA-2013-N-0764 for Animal Feed Regulatory Program Standards
Singeltary Comment Submission
Sunday, March 20, 2016
*** UPDATED MARCH 2016 URGENT Docket No. FDA-2003-D-0432 (formerly
03D-0186) Use of Material from Deer and Elk in Animal Feed Singeltary Submission
Monday, April 11, 2016
*** DECLARATION OF EXTRAORDINARY EMERGENCY DUE TO A FOREIGN ANIMAL DISEASE
TRANSMISSIBLE SPONGIFORM ENCEPHALOPATHY TSE PRION CHRONIC WASTING DISEASE CWD IN
THE UNITED STATES AND NORTH AMERICA ?
From: Terry S. Singeltary Sr.
Sent: Saturday, February 06, 2016 12:11 PM
To: SACAH.Management@aphis.usda.gov
Subject: Secretary's Advisory Committee on Animal Health; Meeting [Docket
No. APHIS-2016-0007] Singeltary Submission
Hello Mrs. R.J. Cabrera and USDA et al,
I would kindly like to submit and comment on the Secretary's Advisory
Committee on Animal Health; Meeting [Docket No. APHIS-2016-0007] ;
Saturday, April 16, 2016
APHIS [Docket No. APHIS-2016-0029] Secretary's Advisory Committee on Animal
Health; Meeting May 2, 2016, and June 16, 2016 Singeltary Submission
In Confidence - Perceptions of unconventional slow virus diseases of
animals in the USA - APRIL-MAY 1989 - G A H Wells
3. Prof. A. Robertson gave a brief account of BSE. The US approach was to
accord it a very low profile indeed. Dr. A Thiermann showed the picture in the
''Independent'' with cattle being incinerated and thought this was a fanatical
incident to be avoided in the US at all costs. ...
snip...see full text ;
*** SEE CWD HIGH INFECTION RATE MAPS FOR COLORADO ! ***
Thursday, March 31, 2016
*** Chronic Wasting Disease CWD TSE Prion Roundup USA 2016 ***
Sunday, May 1, 2016
Center for Biologics Evaluation and Research 25th Meeting of: The
Transmissible Spongiform Encephalopathies Advisory Committee June 1, 2015
Transcript
AND DRUG ADMINISTRATION
Saturday, April 23, 2016
v-CJD prion distribution in the tissues of patients at preclinical and
clinical stage of the disease
*** 2001 FDA CJD TSE Prion Singeltary Submission ***
I remember Creekstone VS USDA et al and BSE Testing saga there ...see;
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2008 Decided August 29, 2008
No. 07-5173
CREEKSTONE FARMS PREMIUM BEEF, L.L.C., APPELLEE/CROSS-APPELLANT
v.
DEPARTMENT OF AGRICULTURE AND EDWARD T. SCHAFER, SECRETARY OF AGRICULTURE,
APPELLANTS/CROSS-APPELLEES
Consolidated with NO. 07-5199
Appeals from the United States District Court for the District of
Columbia
(No. 06cv00544)
Eric Fleisig-Greene, Attorney, United States Department of Justice, argued
the cause for the appellants/cross-appellees. Jeffrey S. Bucholtz, Acting
Assistant Attorney General, Jeffrey A. Taylor, United States Attorney, and Mark
B. Stern and Michael S. Raab, Attorneys, United States Department of Justice,
were on brief. James J. Gilligan, Attorney, United States Department of Justice,
and R. Craig Lawrence, Assistant United States Attorney, entered
appearances.
2
Russell S. Frye argued the cause for the appellee/crossappellant.
Peter C. Choharis entered an appearance.
Before: SENTELLE, Chief Judge, HENDERSON and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge ROGERS.
Dissenting opinion filed by Chief Judge SENTELLE.
KAREN LECRAFT HENDERSON, Circuit Judge: Creekstone Farms Premium Beef, LLC
(Creekstone) raises and slaughters for sale Black Angus cattle. In December
2003, many countries began to ban or severely limit importation of U.S. beef
because bovine spongiform encephalopathy (BSE)—“mad cow disease”—had been found
in one cow in Washington State. See U.S. Dep’t of Agric., Publ’n No.
LDP-M-143-01, An Economic Chronology of Bovine Spongiform Encephalopathy in
North America 4 (2006) (Economic Chronology). To counter the fears of beef
importers as well as domestic consumers, Creekstone developed a plan to test for
BSE each of the approximately 300,000 cattle it slaughters each year.
Declaration of John D. Stewart ¶ 6 (July 13, 2006) (Stewart Decl.). The United
States Department of Agriculture (USDA), however, asserting authority under the
Virus-Serum-Toxin Act, 21 U.S.C. §§ 151- 59 (VSTA or Act), denied Creekstone’s
request to purchase or use a BSE test kit. Creekstone challenged the USDA’s
action in the district court, alleging that two of USDA’s regulations are ultra
vires under VSTA and that, even assuming the regulations are valid, they do not
authorize USDA’s restriction on the sale/use of the BSE test kit. Creekstone
also challenged USDA’s interpretation of another regulation. Both parties moved
for summary judgment and the district court granted partial summary judgment to
each party. 517 F. Supp. 2d 8, 13- 16 (D.D.C. 2007). For the reasons explained
below, we affirm in part and reverse in part.
3
1Any violation of VSTA is a misdemeanor “punish[able] by a fine of not
exceeding $1,000 or by imprisonment not
I.
A. Statutory/Regulatory Background
The Congress enacted VSTA in 1913 following reports that farmers were being
sold ineffective anti-hog cholera serum. See Agriculture Appropriation Bill:
Hearings Before the Senate Comm. on Agric., 62d Cong. 23-24 (1913) (testimony of
A.M. Farrington, Asst. Chief, Bureau of Animal Indus., USDA). The Act makes it
“unlawful . . . to prepare, sell, barter, or exchange . . . or to ship or
deliver for shipment . . . any worthless, contaminated, dangerous, or harmful
virus, serum, toxin, or analogous product intended for use in the treatment of
domestic animals.” 21 U.S.C. § 151 (emphasis added). To this end, VSTA requires
that “any virus, serum, toxin, or analogous product manufactured within the
United States and intended for use in the treatment of domestic animals . . .
[be] prepared, under and in compliance with regulations prescribed by the
Secretary of Agriculture, at an establishment holding [a] license issued by the
Secretary of Agriculture” (Secretary). Id. (emphasis added). In addition, VSTA
makes it illegal to import “any virus, serum, toxin, or analogous product for
use in the treatment of domestic animals” without a permit from the Secretary.
Id. § 152. To implement the Act, the Secretary is authorized “to make and
promulgate from time to time such rules and regulations as may be necessary to
prevent the preparation, sale, barter, exchange, or shipment . . . of any
worthless, contaminated, dangerous, or harmful virus, serum, toxin, or analogous
product for use in the treatment of domestic animals, or otherwise to carry out
[VSTA].” Id. § 154 (emphasis added).1
4
exceeding one year, or by both such fine and imprisonment.” 21 U.S.C. §
158.
2The APHIS Administrator issues the relevant license, namely a U.S.
veterinary biological product license. 9 C.F.R. § 102.5(a).
USDA has promulgated several regulations implementing VSTA. One regulation
under review provides that “[w]here the Administrator [of USDA’s Animal and
Plant Health Inspection Service (APHIS)] determines that the protection of
domestic animals or the public health, interest, or safety, or both,
necessitates restrictions on the use of a [biological] product, the product
shall be subject to . . . restrictions as . . . prescribed on the license.” 9
C.F.R. § 102.5(d).2 The second regulation under review provides that “[n]o
biological product shall be brought into the United States unless a permit has
been issued for such product” by the APHIS Administrator. 9 C.F.R. § 104.1(a).
“Biological products” include “all viruses, serums, toxins, . . . or analogous
products . . . which are intended for use in the treatment of animals and which
act primarily through the direct stimulation, supplementation, enhancement, or
modulation of the immune system or immune response.” 9 C.F.R. § 101.2 (emphasis
added). “Analogous products” are defined, in relevant part, as “[s]ubstances . .
. which are intended for use in the treatment of animals through the detection
or measurement of antigens, antibodies, nucleic acids, or immunity.” Id. §
101.2(2)(ii) (emphasis added). “Treatment” is defined as the “prevention,
diagnosis, management, or cure of diseases of animals.” Id. § 101.2(3) (emphasis
added).
https://pacer.cadc.uscourts.gov/internet/opinions.nsf/0B772DCBE1FDE3D68525780000551AD4/$file/07-5173-1135720.pdf
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CREEKSTONE FARMS PREMIUM BEEF, L.L.C., Plaintiff,
v.
U.S. DEPARTMENT OF AGRICULTURE, et al., Defendants.
Civil Action No. 06-0544 (JR)
MEMORANDUM
Plaintiff Creekstone Farms Premium Beef, LLC wants to test every one of the
approximately 300,000 head of cattle it slaughters each year to determine
whether it was infected with bovine spongiform encephalopathy (BSE), commonly
known as “mad cow disease.” The United States Department of Agriculture (USDA),
however, has denied plaintiff's request to purchase BSE test kits, asserting its
authority under the Virus-Serum-Toxin Act, 21 U.S.C. §§ 151-159, (VSTA). The
parties have cross-moved for summary judgment on the first two counts of
plaintiff's complaint, which assert that the agency has exceeded its authority
under the VSTA, in violation of the Administrative Procedure Act, 5 U.S.C. §
706(2)(C), by (1) promulgating regulations that are inconsistent with the VSTA,
and (2) denying Creekstone's request to perform BSE testing on its own cattle.
BACKGROUND
BSE is a fatal, irreversible disease that causes progressive degeneration
of the brain and central nervous system in cattle. The disease is caused by
prions, abnormal proteins that cause normal cellular protein to convert to an
abnormal form. The existence of BSE in an animal is confirmed through postmortem
microscopic examination of the animal’s brain tissue or by detection of the
abnormal form of the prion protein in its brain tissue.
snip...
It is unnecessary to reach the question of whether BSE test kits are
“worthless,” because their use may not be regulated under the VSTA unless they
are both “intended for use in the treatment of animals” and “worthless.” The
government may indeed be right that the tests are “ineffective, misleading, and
essentially worthless...when used, as proposed by plaintiff, to diagnose the
disease in all slaughter-aged normal-looking cattle.” Def.’s Mem. at 42. But,
should a reviewing court determine that BSE could be detected in slaughter-age
cattle, as is suggested by evidence put forward by plaintiff and the more
extensive testing conducted by other countries, let it be noted that the
government cannot have it both ways: the test kits cannot be both “used for
treatment” and “worthless.” If USDA’s surveillance testing helps “manage” the
disease by providing information about the prevalence of BSE and contributing to
the knowledge of the disease, see Defs.’ Reply at 19-20, citing 9 C.F.R. §
101.2(3) (defining “treatment” to mean “the prevention, diagnosis, management,
or cure of diseases of animals”)(emphasis in original), then so might the more
extensive testing proposed by Creekstone.
The government’s additional argument, that private testing 14 somehow would
interfere with USDA’s surveillance program, is unexplained and therefore
rejected.
Of greater concern is the possibility that private testing 15 could produce
a false positive result, which might trigger unnecessary public alarm. USDA has
asserted this possibility as a reason to avoid private testing. Indeed, the
Bio-Rad kits that Creekstone proposes using are used throughout the world,
including as part of the USDA’s own surveillance testing.
- 18 -
kind regards, terry
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