The Texas Animal Health Commission proposes amendments to Title 4, Texas Administrative Code, Chapter 40 titled "Chronic Wasting Disease", Specifically, amendments are proposed to §40.1, concerning Definitions, §40.2, concerning General Requirements, §40.3, concerning Herd Status Plans for Cervidae, §40.4, concerning Entry Requirements, §40.5, concerning Surveillance and Movement Requirements for Exotic CWD Susceptible Species, §40.6, concerning CWD Movement Restriction Zones and §40.7, concerning Executive Director Declaration of a CWD Movement Restriction Zone. The Texas Animal Health Commission proposes the addition of §40.8, concerning Enforcement and Penalties.
BACKGROUND AND SUMMARY OF PROPOSED AMENDMENTS
The purpose of this chapter is to prevent and control the incidence of chronic wasting disease (CWD) in Texas by seeking to reduce the risk of interstate and intrastate transmission of CWD in susceptible cervid species. The Texas Animal Health Commission (commission) proposes amendments to each section of Chapter 40 to clarify, correct, and update information regarding CWD management. Non-substantive grammatical and editorial changes are also proposed throughout the chapter for improved readability.
Chronic wasting disease is a degenerative and fatal neurological communicable disease recognized by the veterinary profession that affects susceptible cervid species. CWD can spread through natural movements of infected animals and transportation of live infected animals or carcass parts. Specifically, prions are shed from infected animals in saliva, urine, blood, soft-antler material, feces, or from animal decomposition, which ultimately contaminates the environment in which CWD susceptible species live. CWD has a long incubation period, so animals infected with CWD may not exhibit clinical signs of the disease for months or years after infection. The disease can be passed through contaminated environmental conditions, and may persist for a long period of time. Currently, no vaccine or treatment for CWD exists.
To mitigate the risks and spread of CWD, the commission works in coordination and collaboration with the Texas Parks and Wildlife Department (TPWD) to address CWD. The commission has jurisdiction over exotic CWD susceptible species. TPWD has jurisdiction over mule deer, white-tailed deer, and other native species. Those native species are classified as property of the state of Texas and managed as state resources. TPWD, under specific statutory authorization, allows herd owners to breed, trade, sell, and move white-tailed or mule deer that meet certain TPWD requirements.
The commission implements a herd management plan for cervid herds affected by CWD. The herd plan sets forth steps to control the spread of CWD from a CWD-positive herd, the risk of CWD in a CWD-exposed or CWD-suspect herd, or prevent the introduction of CWD into a herd. Herd plans include animal identification, regular examination for clinical signs of CWD, recordkeeping, and other requirements to best prevent or control CWD.
The commission also offers participation in the CWD Herd Certification Program. The Herd Certification Program is a voluntary, cooperative surveillance and certification program between the commission, United States Department of Agriculture (USDA), herd owners, and other affected parties. The purpose of the program is to promote a consistent, national approach in controlling CWD in farmed and captive cervids and preventing the interstate spread of CWD. Participating herds that meet program requirements and have no evidence of CWD advance in status each year for five years, then are certified as low risk for CWD. Certification status, in addition to compliance with the Herd Certification Program performance-based regulations and herd status, permits interstate animal movement.
In May 2019, the USDA updated the CWD Program Standards ("federal standards"). The standards were revised to clarify and update acceptable methods for complying with the legal requirements in 9 CFR Parts 55 and 81. As a participating Approved State CWD Herd Certification Program, the commission is proposing to update the Herd Certification Program rules to align with revised federal standards where applicable and federal regulations.
The proposed amendments for Containment Zone 6 and Surveillance Zones 3, 6 and 7 are in response to CWD discoveries in Lubbock, Hunt, and Uvalde counties. On March 1, 2021, CWD was confirmed and reported in a free-ranging 8.5-year-old mule deer in Lubbock County. The proposed amendment creates Containment Zone 6 and Surveillance Zone 6 in response to that confirmed case. On March 31, 2021, CWD was reported in white-tailed deer in breeding facilities in Hunt and Uvalde counties. The proposed extension to Surveillance Zone 3 is in response to the confirmed CWD cases in Uvalde County, and Surveillance Zone 7 is proposed in response to the confirmed CWD case in Hunt County. The purpose of the restriction zones is to both increase surveillance and reduce the risk of CWD being spread from areas where it may exist.
SECTION-BY-SECTION DISCUSSION
§40.1 Definitions
The proposed rules amend §40.1, "Definitions," by alphabetizing the defined terms, correcting grammar for clarity and conciseness, and adding and deleting terms. The alphabetization of terms causes the numeration changes. The proposed new terms are: "Breeding Facility", "CWD-Suspect Animal", "CWD-Suspect Herd", "Enrollment Date", "Enrolled Herd", "Executive Director", "Herd Certification Program", "Herd Plan", "Herd Status", "Hold Order", "Location Identification Number (LID)", "Minimum Mortality Rate", "Official CWD Test", "Premises Identification Number (PIN)", "Quarantine", "Release Facility", "Status Date" and "TAHC Authorized Veterinarian". The terms proposed for deletion are "CWD Profile", "Suspicious Animal" and "Suspicious Herd". "Certified CWD Postmortem Sample Collector", "Chronic Wasting Disease", "Commingled, Commingling", "CWD Susceptible Species", "Herd", "Limited Contact" and "Trace Herd" propose substantive amendments to better align with 9 CFR Parts 55 and 81 and the federal standards.
The commission proposes the additions of "Breeding Facility" and "Release Facility" to improve understanding about the types of facilities in Texas. "CWD-Suspect Animal" and "CWD-Suspect Herd" are proposed to replace "Suspicious Animal" and "Suspicious Herd." The terms are used in the same way, but the definitions are proposed to align with 9 CFR §55.1 and the federal standards. "Enrollment Date," "Enrolled Herd" and "Status Date" are proposed to align with the federal standards. "Executive Director," "Location Identification Number," and "TAHC Authorized Veterinarian" are proposed for clarification. "Herd Certification Program," "Herd Plan" and "Herd Status" are proposed to align with 9 CFR §55.1 and the federal standards. Additionally, parts of 9 CFR §55.24(a) are proposed for addition to the "Herd Status" definition to improve understanding. "Hold Order" and "Quarantine" are defined as the same term in the federal standards, but the commission proposes distinguishing the two types of actions for improved understanding of movement restrictions.
"Location Identification Number" is proposed as an alternative location-based numbering system to the Premises Identification Number. "Minimum Mortality Rate" is proposed to reflect the commission's decision to utilize death loss in animals 12 months and over from natural causes averaged over a three-year period to determine the minimum number of samples that must be submitted to meet Herd Certification Program requirements unless epidemiologically determined otherwise. The "Official CWD Test" definition is consistent with 9 CFR Part 55 and the federal standards. "Premises Identification Number" is proposed to better align with 9 CFR §55.1, 9 CFR §81.1 and the federal standards.
The following summaries explain substantive changes to existing definitions. In the "Certified CWD Postmortem Sample Collector" definition, "Postmortem" is added as an update to clarify current sampling procedures. The definition aligns with 4 TAC §47.21. Additionally, "laboratory submission" is proposed to more accurately describe the scope of training and align with the federal standards. "CWD Profile" is proposed for deletion because the term is not used elsewhere in Chapter 40 nor is it used in the federal rules or standards, so the commission proposes adding the clinical signs from the "CWD Profile" as well as those from 9 CFR §81.1 to the "Chronic Wasting Disease" definition. Those clinical signs compile a non-exhaustive list of potential CWD symptoms to improve understanding of symptoms that may indicate the presence of the disease.
In the "Commingled, Commingling" definition, "of any age" is proposed to improve understanding regarding the scope of commingling that no commingling may occur between CWD susceptible species of any age. The proposed addition aligns with 9 CFR §55.1, which does not specify an age, and clarifies that animals 12 months or younger are subject to the same requirements as separate herds enrolled in the Herd Certification Program. In the same definition, the disease status aspect of potential commingling is added to clarify the scope of commingling and follow the federal standards and 9 CFR §55.1 definition of commingling.
In the proposed changes to "CWD Susceptible Species", reindeer and caribou are proposed as the commission independently evaluated evidence supporting the species' susceptibility to CWD and found sufficient evidence to support the inclusion in the definition. In the "Farmed or Captive" definition, "cervids" is proposed to clarify the animal at issue. The word "temporarily" is proposed for deletion because free-ranging animals could not be temporarily captured before movement, and the deletion conforms to 9 CFR §55.1 and the federal standards. In the same definition, "or intrastate" is proposed to clarify that certain cervids, like white-tailed deer, may move within the state to more accurately describe the scope of cervid movement.
In the definition of "Herd", the requirements for separate herds is proposed for deletion because those exist in §40.3(a)(5). In "Limited Contact", the terms "incidental" and "between cervids of different herds" are proposed to align with the federal standards and clarify the type of contact at issue. In the definition of "Trace Herd", "CWD-positive" is proposed to replace "affected" for improved clarity and to align with 9 CFR §55.1.
§40.2 General Requirements
The proposed rules amend §40.2, "General Requirements", by proposing "CWD-positive", "CWD-suspect", "commission", "Executive Director" and "approved laboratory" for consistency with §40.1. In subsections (a)(1) and (a)(4), "epidemiologic" is proposed to clarify the kind of investigation conducted upon a hold order or quarantine. In subsection (b), the proposed title amends "Procedures in" to "Requirements for" to better describe the scope of the subsection. Subsection (b) also proposes the flexibility to add herd plan requirements, including duration, that differ from the listed requirements if an epidemiological assessment supports revised action to better protect a herd against the risk and spread of CWD. Further, the word "euthanized" is proposed to replace "destroyed" to more accurately represent the disposal process and use consistent terms with the existing rule.
In subsection (b), the commission proposes clarification that the hold order and quarantine period of 5 years is from the "last exposure to a CWD-positive animal or a CWD-exposed animal" rather than the "last case of CWD" to clarify the beginning of the timeframe and align with the federal standards. The existing subsection (b)(3) is proposed for deletion because the disposition of a positive herd is not dependent on whether evidence of transmission exists. As such, subsection (b)(3) did not add substantive content to the section, and subsection (b)(3)(E) is proposed in subsection (b)(2)(E) to ensure no substantive content is deleted.
In subsection (c), "disposal" is proposed to replace "destruction" to more accurately describe the process. The word "positive" is proposed to clarify the presumptive diagnosis that would trigger the application of this subsection. The addition of "a CWD diagnosis" is proposed to clarify what is disclosed on a premises with regard to animal disposal procedures. Finally, the addition of "indemnity" in subsection (d) is proposed to clarify the type of federal payment pursuant to 9 CFR §55.2.
§40.3 Herd Certification Program for Cervidae
The proposed title is amended from "Herd Status Plans for Cervidae" to "Herd Certification Program for Cervidae" to better describe and clarify the content of the section. In subsection (a)(1), the requirement to identify each animal in the Herd Certification Program before March 31 of the year following the animal's birth is proposed to be consistent with TPWD's requirement, promote compliance, and reduce confusion.
Subsection (a)(2) proposes the minimum perimeter fence height to 8 feet to align with the federal standards. The amendment would grandfather in existing fences, and require the height after October 15, 2021. Subsection (a)(3) proposes amending the reporting requirement to 72 hours instead of five business days to be consistent with the federal standards. Additionally, "farmed to captive cervids" and "TAHC Authorized Veterinarian" terms are proposed for clarification. The commission proposes the addition that herd owners record as part of the complete inventory births, deaths, acquisitions, and dispositions as well as test result records for those animals that died to follow the federal standards' herd inventory requirement. In subsection (a)(5)(D), the reference to the federal standards' appendix is proposed for deletion as the reference is now outdated.
In subsection (b), terms are amended to match the terms as defined in §40.1. The commission proposes submitting samples within 7 days of collection to align with the federal standards. In the same section, the commission proposes the test samples meet the minimum mortality rate as defined in §40.1. Subsection (c) clarifies herd status changes and effects, including when a herd would be placed in Suspended Status as a result of CWD, pursuant to 9 CFR §55.24. Subsection (d) updates where an animal identification number may be linked pursuant to 9 CFR §55.23, and subsection (e) clarifies that the five-year record retention requirement begins after the animal has left the herd or died. In subsection (e)(9), age is added for clarification and to align with 9 CFR §55.23 and the federal standards.
Subsection (f) is proposed to more closely align with 9 CFR §55.23 and the federal standards. The proposed subsection better describes the three types of inspections required to clarify requirements for enrolled herds. Additionally, the commission proposes the initial inspection occur not more than 60 days prior to the herd's date of enrollment rather than 12 months to align with current commission practice to enroll herds as quickly as possible. The commission also proposes visual verification on at least 50% of the animals at the annual inspection to align with commission standard practice. In subsection (f)(4), the commission proposes the herd owner notify the respective TAHC Region Office at least 72 hours prior to any inspection performed by a TAHC Authorized Veterinarian to provide sufficient notice and allow a commission representative to observe the inspection. Subsection (g) removes the cross-reference to another commission rule and instead proposes that content for convenience. In subsection (h), "revocation" is proposed to replace "cancellation" to more accurately explain the action.
Subsection (i) is proposed to provide herd owners with information about how to voluntarily cancel program participation. The provision follows the federal standards. Subsection (j) is also proposed to follow the federal standards and provide greater clarity regarding what to do upon a herd relocating either intrastate or interstate. Subsection (k) is proposed to clarify the commission's authority to alter herd status if a herd owner does not comply with Chapter 40 of the Texas Administrative Code.
§40.4 Entry Requirements
Subsection (a) proposes the clarification and correction to the cross-reference to live animal entry requirements in Chapter 51. The existing subsection (b)(1) is proposed to become part of subsection (b) for improved readability. Because the existing subsection (b)(2) was an exception to subsection (b)(1), a new subsection is proposed for clarity. In the proposed subsections (c) and (d), the term "CWD susceptible species" is proposed for consistency with the defined term.
§40.5 Surveillance and Movement Requirements for Exotic CWD Susceptible Species
Terms from §40.1 are proposed throughout this section for consistency. In the "Eligible Mortality" definition in subsection (a)(1), the "and/or" is proposed to become "or" since the premises could raise or contain exotic CWD susceptible species; the "or" would cover either activity. In the same definition, "or" is proposed to replace "and" because that list regarding causes of death is inclusive. Reindeer and caribou are proposed for addition to the exotic CWD susceptible species definition to reflect the commission's determination based on available evidence that the species is susceptible to CWD.
In subsection (c)(2), the description of a PIN is proposed for deletion because that content is included in the proposed definition of "Premises Identification Number (PIN)." In the same subsection, "LID" is added as an identification option, and the addition of "from the commission or USDA" clarifies where a herd owner may obtain a PIN or LID. In subsection (c)(3), "mortality records" is proposed to replace "mortality log" as mortality log is not used elsewhere in the chapter and "mortality records" is consistent with subsection (f)(3). Subsection (c) also proposes the addition of annually reconciling records and requiring that annual inventory records be kept for one year following submission to the commission.
In subsections (f)(2) and (h), "representative" is proposed to replace "employee" and "personnel" to clarify who may request mortality or dealer records. In subsection (h)(4), the term "sex" is proposed to replace "gender" of the animal for accuracy of terminology.
§40.6 CWD Movement Restriction Zones
Throughout the section, the word "exotic" is proposed to replace "non-native" throughout the chapter for consistency with the commission's governing statutes. In subsection (a), the proposed amendment to the "CWD Containment Zone (CZ)" definition defines the zone more concisely. The proposed addition of "using the best available science" in both that definition and "CWD Surveillance Zone" better reflects current commission practice. In the same subsection, reindeer and caribou are proposed for addition to the exotic CWD susceptible species definition based on the commission's determination that the species is susceptible to CWD. Additionally, the "final processing" and "processing facility" definitions are proposed for clarification. The "high fence premises" definition proposes a fence must be adequate to prevent both ingress and egress, not one or the other. The word "native" in subsection (a)(5) is proposed to move from "CWD Native Susceptible Species" to "Native CWD Susceptible Species" to match the structure of the term "Exotic CWD Susceptible Species." In the same definition, the word "other" is proposed to clarify that mule deer and white-tailed deer are also native cervids. "TPWD" is proposed to replace "Department" for consistency with the abbreviated term as defined. As such, the proposed alphabetization changes the numeration of this subsection.
In subsection (b), the clarifying "such as containment zones and surveillance zones" phrase is proposed to introduce the types of areas restricted for CWD that immediately follow. One new containment zone in subsection (b)(1)(E) and three new surveillance zones in subsections (b)(2)(C), (b)(2)(F) and (b)(2)(G) are proposed in response to recent CWD confirmations. The proposed containment zone covers Lubbock, Lynn, Crosby, and Garza counties. The proposed containment zone number is 6 to correspond to the proposed Surveillance Zone 6. Because the proposed zone covering Uvalde County expands the existing Surveillance Zone 3, the commission proposes amending that zone to include that expansion. Surveillance Zone 7 covers Hunt, Kaufman, Rockwall, and Van Zandt counties. Each proposed zone aligns with zones developed in consultation with Texas Parks and Wildlife Department.
In subsection (c), "Herd Certification Program for Cervidae", is proposed to align with the proposed §40.3 title. The cross-reference to carcass movement restrictions in subsection (c)(4) corrects subsection (g) to subsection (e); subsection (g) pertains to restriction zone review, not the carcass movement as referenced. In subsections (c-f), the terms "CWD susceptible species," "TPWD," "official animal identification," and "exotic CWD susceptible species" are proposed to align with the terms as defined in §40.1 and subsection (a) of this section. In subsection (d)(7), the "and" is proposed for deletion because either type of identification meets surveillance zone requirements.
In subsection (e)(2), "a processing facility for final processing, or another location as permitted by the commission on a VS Form 1-27" is proposed to allow more flexibility in where the harvested animal may be transported. A new subsection, (e)(3), is proposed to reorganize and distinguish the requirements of transportation from taxidermy for clarity; no content is changed. As such, that taxidermy content in the existing subsection (e)(2) is proposed for deletion. In subsection (f), "and" is proposed for deletion from the "and/or" phrase because the Executive Director may authorize movement for either reason. In subsection (g), "representative" is proposed to replace "staff" for consistency with other phrasing regarding persons eligible to review and recommend movement restriction zones.
§40.7 Executive Director Declaration of a CWD Movement Restriction Zone
In subsection (a), the deletion of the "hold order" definition is proposed since that term is proposed in §40.1. "CWD-positive" and "Executive Director" are proposed to align with defined terms. In subsection (c)(6)(B), "commission representative" is proposed to replace "personnel" for consistency with phrasing throughout this chapter regarding persons eligible to issue these documents. The proposed change to the Order's elements matches the structure of the introduction. In subsection (c)(7)(D), "quarantine" is proposed to replace "equine" to correct an error and reflect the language of Section 161.063(d) in Title 4 of the Texas Agriculture Code.
§40.8 Enforcement and Penalties
The proposed section describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Administrative penalties may not exceed $5,000 each day a violation continues or occurs.
FISCAL NOTE
Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each year of the first five years the rules are in effect, there are no estimated additional costs or reductions in costs to state or local governments as a result of enforcing or administering the proposed rules. Commission employees will administer and enforce these rules as part of their regular job duties and resources. Ms. Sines also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules, and the proposed rules do not have foreseeable implications relating to costs or revenues of state governments.
PUBLIC BENEFIT
Ms. Sines determined that for each year of the first five years the proposed rules are in effect, the anticipated public benefits will be consistency with the Code of Federal Regulations and recently updated federal CWD Herd Certification Program Standards, and the improved readability of commission rules to provide herd owners with clearer information to best mitigate the risk and spread of CWD in Texas. Further, the anticipated public benefit from the proposed rules is the protection of CWD susceptible species by increasing the probability of detecting CWD in areas of the state where it is confirmed or likely to be detected and by reducing the inadvertent movement of the disease from those areas.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission determined that the proposed rules will not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission.
MAJOR ENVIRONMENTAL RULE
The commission determined that Texas Government Code §2001.0225 does not apply to the proposed rules because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure, and therefore, is not a major environmental rule.
TAKINGS ASSESSMENT
The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. Instead, the proposed rules relate to the handling of animals, including requirements concerning testing, movement, inspection, identification, reporting of disease, and treatment pursuant to 4 TAC §59.7. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a takings.
ECONOMIC IMPACT STATEMENT
The commission determined that the proposed amendments to §§40.1, 40.3, 40.6 may impact animal agricultural industries, which meet the definition of a small business or microbusiness pursuant to Texas Government Code, Chapter 2006, and may affect rural communities. Specifically, the commission determined that the proposed rules may affect breeding and nursing facilities, participants in the state's voluntary CWD Herd Certification Program, and herd owners of exotic CWD susceptible species located in the proposed containment and surveillance zones.
The commission determined that because of the proposed amendment to the "Commingled, Commingling" definition, there may be a cost to nursing facilities that commingle cervids 12 months of age and younger. As of July 19, 2021, there are 996 breeding facilities and 327 nursing facilities in Texas. The commission is aware of nursing facilities that commingle cervids, however, the agency cannot determine the exact number of businesses that may be affected by the proposed amendment.
The commission also determined that the proposed increase in fence height after October 15, 2021, addition of reindeer and caribou as a CWD susceptible species, inspection requirements, recordkeeping and reporting requirements, sample submission within 7 days of collection, and the minimum mortality rate may impact herd owners participating in the CWD Herd Certification Program. The purpose of the proposed rules pertaining to the Herd Certification Program is to bring Texas into compliance with 9 CFR Parts 55 and 81 and the revised federal standards governing the state-federal cooperative CWD Herd Certification Program. The proposed rules may help prevent adverse economic impacts associated with Texas not meeting minimum participation requirements of the Approved State CWD Herd Certification Program, which is required for the movement of CWD susceptible species in interstate commerce. The proposal may also reduce costs associated with the impacts of chronic wasting disease by promoting early detection of the disease and providing adequate surveillance. At the time of publication, 320 herds are voluntarily enrolled in the program.
The commission determined that the proposed surveillance and containment zones in response to recent positive CWD cases would not affect herd owners of exotic CWD susceptible species because the proposal applies to exotic CWD susceptible species located in geographic areas where CWD has been detected or there is a high probability of detection. As such, the movement and testing requirements resulting from the proposed zones are intended to reduce exposure to other susceptible species in the same rural community, where the disease risk is greatest, and other communities and small businesses across the state. As a result, the application of the rule will help prevent adverse economic impacts associated with chronic wasting disease.
Although the commission does not predict adverse economic impacts to those directly regulated by the commission, the commission considered the businesses that may be impacted and regulatory alternatives as part of its rule proposal process. Texas has an unknown number of exotic cervid species that are free-ranging and also maintained on high-fenced premises. Many of those premises are hunting ranches, which are not subject to the seasonal and regulatory hunting restrictions of TPWD for exotic CWD susceptible species. The commission is not aware of premises containing exotic CWD susceptible species in proposed Containment Zone 6 or Surveillance Zones 6 and 7. The commission is aware of premises in the proposed expansion of Surveillance Zone 3, however, the agency cannot determine the exact number of businesses that may be affected by the expanded zone. The premises known to be in proposed Surveillance Zone 3 are confirmed CWD positive facilities with testing and movement requirements equal to or more stringent than the zone testing and movement requirements proposed by these rules.
REGULATORY FLEXIBILITY ANALYSIS
The commission considered several alternative methods for achieving the proposed rules' purpose while minimizing adverse economic impacts on small businesses, microbusinesses, and rural communities, as applicable, pursuant to Texas Government Code, Chapter 2006. The following sections analyze the substantive proposed changes that may have direct, adverse economic impacts on regulated parties in the order they are presented in Chapter 40.
Commingling Definition. The addition of "of any age" to the commingling definition is proposed to clarify confusion regarding facilities participating in the Herd Certification Program holding CWD susceptible species 12 months of age or younger. The proposal would affect the 327 nursing facilities, some of which commingle cervids 12 months of age and younger. The commission considered separating all herds, making no change, and separating herds by 30 feet. The commission chose to address facilities holding CWD susceptible species 12 months of age or younger by clarifying that all herds must be separated by 30 feet to align with the commission's existing commingling definition and the federal standards that all herds enrolled in the Herd Certification Program must not be commingled. This allows the continued operation of fawns at nursing facilities which provide nourishment until the fawns are weaned while also minimizing the disease risk of commingling.
Minimum Mortality Rate. With regard to the voluntary Herd Certification Program, the commission considered the federal standards' application of a 20% removal rate, which measures the annual removal rate for all adult white-tailed deer, 12 months and older, removed or lost from inventory for any reason since the previous annual inventory. The commission instead proposes implementing the 5% minimum mortality rate based on Texas' data from 2005 to 2019 calculating the expected three-year period of death loss in white-tailed deer 12 months or older from natural causes. In that minimum mortality rate, the commission considers mortality from natural causes within pens rather than the federal removal rate's consideration of deer released to release sites or taken to slaughter. The commission's data supporting the 5% minimum mortality rate shows the mortality percent ranged from 3.77% to 8.07%, and averaged 5.63%. The commission was unable to determine how many facilities meet the minimum mortality rate as it is a new measurement, but determined no new cost would affect herd owners since they already incur the cost of CWD testing. As such, the commission proposes this less restrictive minimum mortality rate of 5% for herd owners to meet as well as the flexibility for the commission to epidemiologically determine the rate otherwise.
Reindeer and Caribou. The commission proposes the addition of reindeer and caribou as a CWD susceptible species based on a note in the federal standards expressing the USDA's plan to add the species to the definition in the next CFR review. The commission independently evaluated the best available science supporting the species' susceptibility to CWD, and found sufficient evidence based on peer-reviewed research in support of the proposal. With the addition of the reindeer and caribou as a CWD susceptible species, that species would be required to participate in a Herd Certification Program to enter Texas. To the commission's knowledge, few, if any, reindeer or caribou are currently present in Texas due to the climate. In the last three years, the commission issued 21 permits for reindeer to enter Texas for sale or exhibition.
Perimeter Fence Height Requirement. The commission proposes increasing the perimeter fence height to 8 feet for new herds enrolled in the voluntary Herd Certification Program after October 15, 2021. The commission considered three options to meet the minimum perimeter fence height requirement set forth in the revised federal standards: requiring all currently enrolled herd owners in the Herd Certification Program to comply with the new required perimeter fence height on the publication date of the federal standards, compliance on the date of herd enrollment after publication of the federal standards, or compliance on the date these rules become effective.
To minimize adverse economic impacts on small businesses, the commission chose to grandfather in current perimeter fence requirements and, if adopted, will implement the new height requirement for new herds after October 15, 2021. The commission determined the approximate price to install an 8-foot perimeter fence is between $4 and $5 per foot. The commission found 7-foot perimeter fencing, an alternative, was 5-10% less expensive than the 8-foot fencing. Variables affecting the price estimate includes location of fence, owner and builder preferences, and site preparatory work. The commission lacks the data for how many facilities have existing perimeter fences at or above 8 feet, but found that 8-foot fences adequately prevent ingress and egress of cervids, and the requirement aligns with federal standards. The proposal is distinguishable from Section 43.361 of the Texas Parks and Wildlife Code and Title 31, Subchapter T, Section 65.605 of the Texas Administrative Code because although those sections require perimeter fence of certain facilities to be not less than 7 feet in height, this proposal addresses the fence height of a facility voluntarily participating in the CWD Herd Certification Program and aligns with federal standards.
Reporting. With regard to the voluntary Herd Certification Program, the proposed modification to report farmed or captive cervids that escape or disappear and free-ranging cervids that enter the facility to the commission within 72 hours rather than 5 business days is consistent with the federal standards. Federal requirements call for the herd owner to report such information immediately, but the standards allow states to offer a 72-hour range to provide the herd owner time to recapture the animal and work with the commission for animal disposition decisions. As such, the commission considered the herd owner reporting immediately or reporting within 72 hours to still align with the federal standards, and proposes the less stringent 72-hour period to achieve the objectives of the rule while minimizing any adverse economic impacts associated with reporting more quickly.
Sample Submission. The commission proposes the requirement that herd owners shall submit CWD test samples within 7 days of collection in accordance with the federal standards. The commission considered requiring immediate submission, submission within 7 days, submission within 14 days, and not changing the existing provision. Based on the federal standards, the commission determined that sample submission within 7 days is the most appropriate proposal to allow some flexibility for herd owners while also protecting susceptible species from CWD by allowing the commission to act more quickly in response to any positive samples.
Herd Certification Program Inspections. The proposed requirement for participating herd owners to record all births, deaths, acquisitions, dispositions, escaped and disappeared animals to best protect Texas herds against the risks and spread of CWD. The estimated economic impact may be the cost of recording materials and the time to record this information. With regard to the voluntary Herd Certification Program, the proposed addition of inspection activities conforms to the federal standards and current commission practice. As such, no alternatives were considered.
Recordkeeping. The proposed rules add the requirement for a herd owner of an exotic CWD susceptible species to retain records for one year following submission to the commission. The commission requires records to be kept for five years in other parts of the chapter, which is the alternative to this provision. This proposal is less stringent on the herd owner while following the objective of the rule.
Containment and Surveillance Zones. The commission considered alternatives for all proposed zones, especially where there are known exotic CWD susceptible species, including voluntary surveillance and alternative zone boundaries that followed more recognizable features. With the upcoming hunting season and the potential for increased animal movement from the affected zones, the commission determined that voluntary testing would not protect the health of other CWD susceptible species in the affected area and across the state. The commission also determined that the regulated community would benefit from consistent zone boundaries for both native and exotic CWD susceptible species. As such, the commission proposes zone boundaries to align with boundaries developed in consultation with Texas Parks and Wildlife Department.
GOVERNMENT GROWTH IMPACT STATEMENT
In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement (GGIS). For each year of the first five years the proposed rules would be in effect, the commission determined the following:
1. The proposed rules will not create or eliminate a government program;
2. Implementation of the proposed rules will not require the creation of new employee positions or the elimination of existing employee positions;
3. Implementation of the proposed rules will not require an increase or decrease in future legislative appropriations to the Commission;
4. The proposed rules will not require an increase or decrease in fees paid to the Commission;
5. The proposed rules will not create a new regulation;
6. The proposed rules will expand existing rules, but will not otherwise limit or repeal an existing regulation;
7. The proposed rules may increase the number of individuals subject to the regulation; and
8. The proposed rules will not adversely affect this state's economy.
COST TO REGULATED PERSONS
The proposed amendments to §§40.1, 40.3, and 40.6 may impose a cost on a regulated person if they operate a nursing facility that currently commingles CWD susceptible species, voluntarily participate in the CWD Herd Certification Program, or are owners of exotic CWD susceptible species located within a proposed surveillance or containment zone. The commission determined these proposals are necessary to follow the legislative requirement that the commission protect exotic livestock from certain diseases. The commission also determined the proposed amendments are necessary to meet a federal requirement or to receive federal funding. The proposed rules do not otherwise impose a direct cost on a regulated person, state agency, a special district, or a local government within the state. Pursuant to Section 2001.0045 of the Texas Government Code, therefore, it is unnecessary to amend or repeal any other existing rule.
REQUEST FOR COMMENT
Comments regarding the proposed amendments may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax at (512) 719-0719 or by e-mail to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.
STATUTORY AUTHORITY
The amendments to §§40.1 - 40.7 within Chapter 40 of the Texas Administrative Code and the addition of §40.8 are proposed under the following statutory authority as found in Chapter 161 of the Texas Agriculture Code.
The Texas Animal Health Commission is vested by statute, §161.041(a), titled "Disease Control", to protect all livestock, exotic livestock, domestic fowl, and exotic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl.
Pursuant to §161.0415, titled "Disposal of Diseased or Exposed Livestock or Fowl", the commission may require by order the slaughter of livestock, domestic fowl, or exotic fowl exposed to or infected with certain diseases.
Pursuant to §161.0417, titled "Authorized Personnel for Disease Control", the commission must authorize a person, including a veterinarian, to engage in an activity that is part of a state or federal disease control or eradication program for animals.
Pursuant to §161.046, titled "Rules", the commission may adopt rules as necessary for the administration and enforcement of this chapter.
Pursuant to §161.048, titled "Inspection of Shipment of Animals or Animal Product", the commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. An agent of the commission is entitled to stop and inspect a shipment of animals or animal products being transported in this state to determine if the shipment originated from a quarantined area or herd; or determine if the shipment presents a danger to the public health or livestock industry through insect infestation or through a communicable or non-communicable disease.
Pursuant to §161.049, titled "Dealer Records", the commission may require a livestock, exotic livestock, domestic fowl, or exotic fowl dealer to maintain records of all livestock, exotic livestock, domestic fowl, or exotic fowl bought and sold by the dealer. The commission may also inspect and copy the records of a livestock, exotic livestock, domestic fowl, or exotic fowl dealer that relate to the buying and selling of those animals. The commission by rule shall adopt the form and content of the records maintained by a dealer.
Pursuant to §161.054, titled "Regulation of Movement of Animals; Exception", the commission, by rule, may regulate the movement of animals. The commission may restrict the intrastate movement of animals even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. The commission is authorized, through §161.054(b), to prohibit or regulate the movement of animals into a quarantined herd, premises, or area. The Executive Director of the commission is authorized, through §161.054(d), to modify a restriction on animal movement, and may consider economic hardship.
Pursuant to §161.0541, titled "Elk Disease Surveillance Program", the commission by rule may establish a disease surveillance program for elk. Such rules include the requirement for persons moving elk in interstate commerce to test the elk for chronic wasting disease. Additionally, provisions must include testing, identification, transportation, and inspection under the disease surveillance program.
Pursuant to §161.0545, titled "Movement of Animal Products", the commission may adopt rules that require the certification of persons who transport or dispose of inedible animal products, including carcasses, body parts, and waste material. The commission by rule may provide terms and conditions for the issuance, renewal, and revocation of a certification under this section.
Pursuant to §161.056(a), titled "Animal Identification Program", the commission, to provide for disease control and enhance the ability to trace disease-infected animals or animals that have been exposed to disease, may develop and implement an animal identification program that is no more stringent than a federal animal disease traceability or other federal animal identification program. Section 161.056(d) authorizes the commission to adopt rules to provide for an animal identification program more stringent than a federal program only for control of a specific animal disease or for animal emergency management.
Pursuant to §161.060, titled "Authority to Set and Collect Fees", the commission may charge a fee for an inspection made by the commission as provided by commission rule.
Pursuant to §161.061, titled "Establishment", if the commission determines that a disease listed in §161.041 of this code or an agent of transmission of one of those diseases exists in a place in this state or among livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl, or a place in this state or livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl are exposed to one of those diseases or any agent of transmission of one of those diseases, the commission shall establish a quarantine on the affected animals or on the affected place. The quarantine of an affected place may extend to any affected area, including a county, district, pasture, lot, ranch, farm, field, range, thoroughfare, building, stable, or stockyard pen. The commission may, through §161.061(c), establish a quarantine to prohibit or regulate the movement of any article or animal the commission designates to be a carrier of a disease listed in Section 161.041 or a potential carrier of one of those diseases, if movement is not otherwise regulated or prohibited for an animal into an affected area, including a county district, pasture, lot, ranch, field, range, thoroughfare, building, stable, or stockyard pen.
Pursuant to §161.0615, titled "Statewide or Widespread Quarantine", the commission may quarantine livestock, exotic livestock, domestic fowl, or exotic fowl in all or any part of this state as a means of immediately restricting the movement of animals potentially infected with disease and shall clearly describe the territory included in a quarantine area.
Pursuant to §161.065, titled "Movement from Quarantined Area; Movement of Quarantined Animals", the commission may provide a written certificate or written permit authorizing the movement of animals from quarantined places. If the commission finds animals have been moved in violation of an established quarantine or in violation of any other livestock sanitary law, the commission shall quarantine the animals until they have been properly treated, vaccinated, tested, dipped, or disposed of in accordance with the rules of the commission.
Pursuant to §161.081, titled "Importation of Animals", the commission may regulate the movement of livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl into this state from another state, territory, or country. The commission by rule may provide the method for inspecting and testing animals before and after entry into this state, and for the issuance and form of health certificates and entry permits.
Pursuant to §161.101, titled "Duty to Report", a veterinarian, a veterinary diagnostic laboratory, or a person having care, custody, or control of an animal shall report the existence of the disease, if required by the commission, among livestock, exotic livestock, bison, domestic fowl, or exotic fowl to the commission within 24 hours after diagnosis of the disease.
Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.
The proposed rules in this chapter for adoption do not affect other statutes, sections or codes.
§40.1.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:
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Terry S. Singeltary Sr., Bacliff, Texas USA, Galveston Bay <flounder9@verizon.net>
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