Commission Agenda Item No. 6
Presenter: Clayton Wolf

Action
Chronic Wasting Disease
November 5, 2015

I.       Executive Summary: This item presents an update on the status of Texas Parks and Wildlife Department (TPWD) response to the detection of chronic wasting disease (CWD) in captive cervid populations and subsequent efforts to ascertain its prevalence/stop its spread in both farmed and free-ranging populations. The item seeks adoption of proposed interim rules intended to aid in the detection and containment of chronic wasting disease (CWD) in free-ranging and captive deer populations. The proposed new interim rules would:

II.     Discussion: CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, and others (susceptible species). It is classified as a transmissible spongiform encephalopathy, a family of diseases that includes scrapie (found in sheep) and Bovine Spongiform Encephalopathy (BSE, found in cattle). The department has been concerned for over a decade about the possible emergence of CWD in wild and captive deer populations in Texas. The department closed the Texas border in 2005 to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and recordkeeping. Since 2002, the department has tested more than 32,882 free-ranging deer in Texas for CWD, and cervid producers have submitted more than 12,759 test results to the department.

In July of 2012, TPWD’s concern about the emergence of CWD in Texas escalated when TPWD confirmed CWD in two mule deer taken in the Hueco Mountains in far West Texas. As a result, TPWD’s concerns about CWD were no theoretical. Based on recommendations from the CWD Task Force, TPWD adopted new rules in 2013 (37 TexReg 10231) to implement a CWD containment strategy in the area of the outbreak. 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.

On June 30, 2015, TPWD 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 chronic wasting disease (CWD).  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; however, the results of an epidemiological assessment of all deer at the index facility should be available by the time of the meeting, which should afford greater resolution. In any case, 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 Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico).  TPWD 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 recently confirmed to have a CWD positive white-tailed deer acquired from the index facility.

On August 18, 2015, TPWD adopted emergency rules (40 TexReg 5566) that are essentially identical to the proposed interim rules contained at Exhibit A. The proposed interim rules were published in the October 2, 2015, issue of the Texas Register (40 TexReg 6856). A summary of public comment on the proposed interim rules will be presented at the time of the hearing. On October 5, 2015, TPWD adopted emergency rules that address CWD within the context of permits to trap, transport, and transplant game animals and game birds (“Triple T” permits), permits to trap, transport, and process surplus deer (“TTP” permits), and deer management permits (DMP).

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, TPWD intends to review the interim rules, if adopted, following the close of the deer season and present the results of that review to the Texas Parks and Wildlife Commission (Commission) in the spring of 2016 for possible modifications.

III.    Recommendation: The staff recommends the Commission adopt the following motion:

The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §65.90-65.93, concerning Disease Detection and Response, with changes as necessary to the proposed text (located at Exhibit A) as published in the October 2, 2015 issue of the Texas Register (40 TexReg 6856).

Attachments – 1

  1. Exhibit A – Proposed CWD/Deer Breeder Rules

Commission Agenda Item No. 6
Exhibit A

DEER BREEDER/CWD PERMIT RULES

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes new §§65.90 — 65.93, concerning Disease Detection and Response.  The proposed new rules will be constituted as new Division 2 within Chapter 65, Subchapter B, entitled Chronic Wasting Disease — Movement of Breeder Deer. The department wishes to emphasize that the proposed new rules, if adopted, would be an interim replacement for the current emergency rules adopted  on August 18, 2015 (40 TexReg 5566), (“emergency CWD rules”), which is necessary in order to maintain regulatory continuity for the duration of the 2015-16 deer season and the period immediately thereafter.  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, the department intends to review the interim rules following the close of the deer season and present the results of that review to the Parks and Wildlife Commission (Commission) in the spring of 2016 for possible modifications.

         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.

Discovery of CWD

         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 chronic wasting disease (CWD).  Under the provisions of the Agriculture Code, §161.101(a)(6) CWD is a reportable disease.  A veterinarian, veterinary diagnostic laboratory, or person having care, custody, or control of an animal is required 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 Deer Management Permit (DMP) facilities in Texas, as well as two destinations in Mexico).  (A DMP is a permit issued by the department under rules adopted pursuant to Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, that allows the temporary possession of free-ranging white-tailed or mule deer for breeding purposes.) 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 recently confirmed to have a CWD positive white-tailed deer acquired from the index facility.

         The proposed new rules impose CWD testing requirements and movement restrictions for white-tailed deer and mule deer held under the authority of deer breeder permits issued by the department. The new rules are a result of extensive cooperation between the department and the Texas Animal Health Commission (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 jurisdiction” of TAHC. Tex. Agric. Code §161.041(b).

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 classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle), and 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 testing the obex (a structure in the brain) or medial retropharyngeal lymph node, although the department is actively collaborating with researchers to investigate possible efficacious live-animal tests that can be integrated into the state’s overall disease surveillance efforts.

         Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. 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 decline in at least one free-ranging population, and there is evidence that hunters tend to 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.

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.

         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 32,882 “not detected” CWD test results were obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted 12,759 “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.

Overview of Proposed Rules

         The proposed new rules therefore set forth specific CWD testing requirements for deer breeders, which would have to be satisfied in order to transfer deer to other deer breeders (or other captive-deer facilities), or for purposes of release. The new rules also impose CWD testing requirements on sites where breeder deer are liberated (release sites).

         One of the most effective approaches to managing infectious diseases and arresting the spread of a disease is to segregate suspicious individuals and populations from unexposed populations. As a matter of epidemiological probability, when animals from a population at higher risk of harboring an infectious disease are introduced to a population of animals at a lower risk of harboring an infectious disease, the confidence that the receiving population will remain disease-free is reduced.

         Therefore, in establishing testing and other requirements, the proposed rules classify breeding facilities and release sites based on the epidemiological likelihood that the breeder facility or release site will contain or spread CWD. In other words, the classifications are based on the relative level of risk for CWD associated with the breeding facility or release site. Breeding facilities are classified as Transfer Category 1 (TC 1), Transfer Category 2 (TC 2) or Transfer Category 3 (TC 3). TC 1 breeding facilities are facilities that are have a low risk for CWD and TC 3 facilities are facilities that have a higher risk for CWD. TC 1 facilities are considered the highest status breeding facilities under the proposed rules.  Similarly, release sites are classified as a Class I, Class II or Class III release site. As with breeding facilities, a Class I release site poses less risk and a Class III site poses more risk. Class I release sites are considered the highest status release sites.

         One factor in determining relative risk concerns a breeding facility’s participation in TAHC’s CWD Herd Certification Program.  See, 4 Tex. Admin. Code §40.3 (relating to Herd Status Plans for Cervidae). Participation in the TAHC CWD Herd Certification Program requires that breeding facilities comply with more stringent CWD testing, monitoring, and other requirements. Breeding facilities that have complied with the testing, monitoring, and other requirements of this program for five years or more are considered to be at the lowest risk for CWD. In evaluating risk, the department determined that these so-called “certified” or “fifth-year” breeding facilities pose the lowest level of risk.

         Another factor in evaluating risk is the relationship of a breeding facility or release site to a breeding facility at which CWD has been detected. As described in more detail below, those facilities and sites which are most closely related to the CWD-positive facility are referred to as “Tier 1” facilities.

         Another significant component of the proposed new rules is the requirement that breeder deer may be released (liberated) only on release sites that are surrounded by a fence of at least seven feet in height and that is capable of retaining deer at all times. Because deer held under deer breeder permits are frequently liberated for stocking and/or hunting purposes (27,684 in 2014), the potential for disease transmission from liberated breeder deer to free-ranging deer is of concern, given that the source of CWD in the index facility is currently unknown and the large number of deer that have been moved to other breeding facilities and/or released to the wild.

         The proposed new rules are necessary to protect the state’s white-tailed and mule deer populations, as well as the long term viability of associated hunting, wildlife management, and deer breeding industries.  To minimize the severity of biological and economic impacts resulting from CWD, the  proposed new rules implement a more rigorous testing protocol within certain deer breeding facilities and at certain release sites than was previously required.  The proposed new rules allow all deer breeders, except a CWD-positive facility, the opportunity to continue to move and release breeder deer in an effort to balance the needs of the many and varied landowner, management, and deer hunting interests in the state.

Changes from Emergency Rules

The proposed new rules differ from the emergency CWD rules in several ways.  Although the following is not a comprehensive listing, to assist persons wishing to comment on the proposed new rules, the following provides information about areas in which the proposed rules differ from the emergency rules.

Substantive Changes from Emergency Rules

         1. Section 65.91(e) of the emergency rules provides that if a breeding facility or release site accepts breeder deer from a facility of lower status, then the receiving facility assumes that lower status for the purpose of the rules. Although the emergency rules provide a mechanism for Transfer Category (TC) 2 status to be re-established for facilities that have dropped to TC 3 status, the emergency rules do not specify a timeframe for such a transition. Therefore, proposed new §65.91(f) stipulates that a facility that has dropped in status may increase in status, either in two years (TC 3 to TC 2) or in five (TC 2 to TC 1).

         2. Similarly, the emergency rules do not specifically address the status of new facilities permitted after March 31, 2015. In the same vein, the emergency rules do not explicitly state that it is possible for TC 2 facilities to become TC 1 facilities (although it would be automatic if “5th year” or “certified” status under the Texas Animal Health Commission (TAHC) Herd Certification Program is attained). Therefore, proposed new §65.92(a)(4) would contain clarifying language to the effect that facilities permitted after March 31, 2015 would assume the status of the lowest status of deer accepted.

         3. Section 65.93(b)(3)(A) of the emergency rules did not note that a release site is a Class III release site if it is a Tier 1 facility. Proposed new §65.93(b)(3)(B)(i) remedies that oversight.

Clarifying and Other Changes from Emergency Rules

         1. The emergency rules did not contain a definition of “confirmed” as it relates to CWD testing. In reviewing the emergency rule for the preparation of this proposal, the department determined that a definition of “confirmed” would be helpful to avoid confusion. Therefore, proposed new §65.90(3) defines the term as “a CWD test result of “positive” received from the National Veterinary Service Laboratories of the United States Department of Agriculture.”

         2. The definition of “exposed” contained at §65.90(9) of the emergency rules did not contemplate situations in which the department is able to determine that although a deer might otherwise be considered an “exposed” to CWD, the department is able, through an epidemiological investigation to determine that a deer is, in fact, not exposed.  For example, if a deer was transferred out of a breeding facility prior to a CWD-positive deer being transferred into the facility, the department may be able to determine that the deer transferred out of the facility was not exposed to CWD. The ability to determine that a deer is not, in fact, an exposed deer is important because a facility that accepts an exposed deer becomes a “Tier 1” facility, triggering provisions that not only affect that facility, but all the facilities that received deer from the facility. Therefore, the definition of “exposed” in proposed new §65.90(10) has been altered to allow the department to truncate the trace-back of deer movements in a facility in cases where an epidemiological investigation reveals the trace -back is not necessary.

         3. The definition of “Tier 1” contained at §65.90(20) of the emergency rules did not contemplate situations in which a facility that received exposed deer might be able to satisfy testing requirements to become eligible to move deer, but would still be prohibited from doing so by being subject to a TAHC hold order. Therefore, proposed new §65.90(21) has been altered to stipulate that a Tier 1 facility remains a Tier 1 facility if it is under a TAHC hold order.

         4. Section 65.91(h) of the emergency rules provided that a person who is subject to the provisions of the emergency rules is required to comply with the provisions of TAHC regulations at 4 TAC Chapter 40 (relating to Chronic Wasting Disease) that are applicable to white-tailed or mule deer. As worded, the provision inadvertently excludes deer released prior the effective date of the emergency rules, because such deer have been liberated and are not possessed under the provisions of the rules. Therefore, proposed new §65.92(i) has been reworded to apply also to persons who receive deer for liberation.

         5. Proposed new §65.93(a)(5) would provide that if the owner of a release site does not comply with the CWD testing requirements the release site would be ineligible to be a destination for future releases. The emergency rules and included a five-year timeframe for ineligibility.  The five-year time frame for ineligibility is not included in the proposed new rules.

         6. The emergency rules contained specific dates necessary to accommodate the immediate application of the emergency provisions. The proposed new rules eliminate those dates where necessary and replace them with generic language.

Definitions

         Proposed new §65.90, concerning Definitions, would set forth the meanings of specialized words and terms in order to eliminate ambiguity and enhance compliance and enforcement.

         Proposed new §65.90(1) would define “accredited testing facility” 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 “breeder deer” as “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.” 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(3) 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(4) 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(5) 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(6) 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 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(7) 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(8) 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(9) would define “eligible mortality” as “a breeder deer that has died within a deer breeding facility and is 16 months of age or older, or, if the deer breeding facility is enrolled in the TAHC CWD Herd Certification Program, is 12-months of age or older.” The definition is necessary, in part, because the proposed rules require CWD testing of eligible mortalities. 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 new §65.90(10) would define “exposed deer.” This 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(11) would define “hunter-harvested deer” as “a deer required to be tagged under the provisions of Subchapter 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(12) 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(13) 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(12).

         Proposed new §65.90(14) 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 breeder deer released to the wild to be tagged with either a RFID or NUES tag.

         Proposed new §65.90(15) would define “originating facility” as “a facility that is the source facility identified on a transfer permit.” The definition is necessary because the proposed new rules allow breeder deer to be transferred between deer breeders, making it necessary to distinguish one from the other.

         Proposed new §65.90(16) 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(17) would define “release site” as “a specific tract of land that has been approved by the department for the release of breeder deer under this division.” The definition is necessary because the proposed new rules impose CWD testing requirements for tracts of land where breeder deer are liberated if the breeder deer originate from certain types of deer breeder facilities.

         Proposed new §65.90(18) 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.

         Proposed new §65.90(19) 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 breeder deer released to the wild to be tagged with either an RFID or NUES tag.

         Proposed new §65.90(20) 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 rules categorize breeding facilities and release sites based on relative risk. The definition is necessary because the proposed new rules predicate the eligibility of deer breeding facilities to transfer and receive breeder deer, and the release site testing requirements once they have received deer, upon the status of the breeding facility or release site.

         Proposed new §65.90(21) would define “Tier 1 facility” as “any  facility authorized to possess white-tailed deer or mule deer that has received an exposed deer within the previous five years or transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility.” The definition is necessary to offer a shorthand reference to those facilities that have a direct connection to a CWD-positive facility.

         Proposed new §65.90(22) would define “TAHC” as “Texas Animal Health Commission.” The Texas Animal Health Commission is the state agency charged with protecting livestock in the state, including farmed cervids.

         Proposed new §65.90(23) 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(24) 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(25) 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 breeder 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. Because of the need to quickly implement a regulatory response to the emergence of CWD there is insufficient time to harmonize 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 for any purpose except as provided by the proposed new rules. Because deer breeders frequently transfer deer to and receive deer from other deer breeders, as well as transfer breeder deer for release, it is necessary in light of the emergence of CWD in a Texas deer breeding facility 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 a deer breeding facility where CWD has been detected, beginning with the notification that a “suspect” test result has been received and lasting until the department authorizes resumption of activities. Given that CWD is an infectious disease, it is necessary to prohibit certain activities in order to contain the spread of the disease.

         Proposed new §65.91(d) would prohibit the transfer of exposed breeder deer from a deer breeding facility unless specifically authorized in a TAHC herd plan and then only in accordance with the provisions of the proposed new rules. Under TAHC rules, any deer breeding facility that receives breeder deer from CWD-positive facility is automatically placed under a “hold order,” which prohibits the movement of breeder deer out of the facility while TAHC conducts an epidemiological investigation and creates a herd plan for the facility based on that investigation. If the TAHC herd plan provides that movement of exposed deer can resume, then such movement may result if authorized by and if in compliance with the proposed new rules (if adopted).

         Proposed new §65.91(e) would stipulate that a breeding facility or release site that receives breeder deer from an originating facility of lower status would automatically assume the status of the originating facility and become subject to the testing and release requirements of the proposed new rules. 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. 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.

         Proposed new §65.91(f) would explicitly outline the timeframes for facilities or release sites to increase its status following a loss of status. A discussion of this provision was provided earlier in this preamble.

         Proposed new §65.91(g) would stipulate that a CWD test is not valid unless it is performed by an accredited testing facility. 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 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 CWD tests. Therefore, in order to ensure that CWD tests are performed in accordance with uniform standards, the proposed new rules would require all CWD tests to be performed by 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 retropharyngeal lymph node collected from the eligible mortality by an accredited veterinarian or other person approved by the department.

         Proposed new §65.91(h) would require all applications and notifications required by the proposed new rules to be submitted to the department electronically via the department’s TWIMS application or by another method expressly authorized by the department. Under current rule, deer breeders are required to submit all applications and reports via TWIMS; the proposed new rules would do so also, but also allow the department to authorize another method in an effort to account for unexpected situations, such as TWIMS being unavailable.

         Proposed new §65.91(i) would require compliance with TAHC rules concerning CWD, to the extent that they are applicable to white-tailed deer and mule deer. The department’s response to CWD is part of a multi-agency cooperative effort with TAHC. In addition to the applicability of the department’s rules regarding movement of breeder deer, TAHC rules govern herd plans; the department intends to enforce those rules under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L.

Transfer Categories and Requirements

         Proposed new §65.92, concerning Transfer Categories and Requirements, would set forth provisions generally applicable to deer breeding facilities as well as delineating a tiered system of testing requirements predicated on a given deer breeding facility’s exposure to deer from a CWD-positive facility.

         Proposed new §65.92(a) would establish those provisions generally applicable to the transfer of breeder deer from a deer breeding facility.

         Proposed new §65.92(a)(1) would provide for the transfer of breeder deer, pursuant to activation of a valid transfer permit, for four purposes: (1) to another deer breeder; (2) to an approved release site; (3) to a Deer Management Permit (DMP) facility; or (4) to another person for nursing purposes. Under previous rules at §65.610 of this title (relating to Transfer of Deer), breeder deer may be transferred only after the activation of a transfer permit and only for specific purposes (to another deer breeder; for release to the wild; to a DMP facility; to the holder of an educational display or zoological permit issued by the department; or on a temporary basis to another person for nursing purposes or to receive medical attention). Given the threat of transmission of CWD, the proposed new rules contemplate the qualified transfer of breeder deer in a narrower context. Therefore, the proposed new rules would allow the movement of breeder deer for four purposes, contingent on the satisfaction of testing requirements imposed by the proposed new rules or a TAHC herd plan.

         Notwithstanding the provisions of proposed new §65.92(a)(1), proposed new §65.92(a)(2) would prohibit the movement of breeder deer if: (1) the transfer is not authorized under a TAHC herd plan; (2) “not detected” CWD test results have been submitted for less than 20 percent of eligible mortalities at the breeding facility since May 23, 2006; (3) the breeding facility has an unreconciled herd inventory; or (4) the breeding facility is not in compliance with the provisions of §65.608 of this title (relating to Annual Reports and Records). The basis for each of these three prohibitions is explained as followed.

         With regard to the first prohibition, since a TAHC herd plan will normally not authorize the movement of breeder deer if the deer breeder does not institute a testing program, and/or comply with other requirements, proposed new paragraph (2)(A) would prohibit movement of breeder deer from a breeding facility that is not authorized to do so under the TAHC herd plan for the facility.

         With regard to the second prohibition, previous rules at §65.604 of this title (relating to Disease Monitoring) allowed a deer breeder to move breeder deer if, among other things, CWD test results of ’not detected’ had been returned from an accredited test facility on a minimum of 20 percent of all eligible breeder deer mortalities occurring within the facility since May 23, 2006. Although from an epidemiological perspective this standard provides a relatively low statistical confidence of detecting CWD if it exists in a facility, a less stringent standard would be of little value in detecting CWD. Therefore, any breeding facility not in compliance with this standard should not be allowed to move breeder deer until it has “tested out,” or submitted sufficient test samples of “not detected” to provide a higher level of confidence that CWD will not be transmitted from the facility.

         The third and fourth prohibitions are related to reconciled herds and annual reports. Current department rules at §65.608 of this title (relating to Annual Reports and Records) require deer breeders to submit an annual report. The annual report must include a herd reconciliation that accounts for every breeder deer held, acquired, or transferred by a breeding facility, as well as births and mortalities. A breeding facility that is not in compliance with the reporting requirements or has submitted incomplete or inaccurate records frustrates efforts to determine the source and/or disposition of every deer in the facility, meaning that any number of scenarios could be possible with respect to disease transmission.

         Proposed new §65.92(a)(3) would prohibit the transfer of a breeder deer to a Class III release site unless the deer has been tagged with an approved RFID or NUES ear tag. As has been discussed, the proposed new rules create a classification system for breeding facilities that is based on the extent to which the facility is believed to have been exposed to CWD and the testing history of the facility. The proposed new rules also create a similar system for classifying release sites. As described in more detail later in this preamble, deer within a Class III release site are at a higher risk for CWD. The department believes that breeder deer released onto a Class III site should be readily identifiable for purposes of CWD testing. Therefore, the proposed new rules would require such deer to be ear-tagged prior to release.

         Proposed new §65.92(a)(4) would stipulate that a deer breeding facility initially permitted after March 31, 2015 will assume the lowest status among all originating facilities from which deer are received. Proposed new §65.92(a)(4) would also provide that a breeding facility cannot assume TC 1 status unless it meets the criteria established in proposed new §65.92(b)(1), which limits the TC 1 designation to those facilities that are not Tier 1 facilities and have a “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program.

         Proposed new §65.92(b) would enumerate the three categories of breeding facilities and the testing requirements for each.

         Proposed new §65.92(b)(1) would establish that a breeding facility is a TC 1 facility  if it is not a Tier 1 facility and has “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program. Because a TC 1 facility has achieved this status in a disease monitoring protocol and has neither accepted deer from nor transferred deer to a CWD-positive facility, a TC 1 facility is a breeding facility that is least likely to contain CWD-positive breeder deer. Additionally, because a TC 1 facility with “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program is considered to be adequately monitoring for CWD, there are no additional testing requirements imposed by the proposed new rules on TC 1 facilities.

         Proposed new §65.92(b)(2) would establish that a breeding facility is a TC 2 facility if it is not a Tier 1 facility and it has returned “not detected” CWD test results for either 4.5 percent (or more) of the average number of deer at least 16 months of age (or 12 months of age, if the facility is participating in the TAHC herd certification program) within the facility during the previous two reporting years, or 50 percent of all eligible mortalities during the previous two reporting years, whichever represents the lowest number of deer tested. From an epidemiological point of view, not being a Tier 1 deer breeding facility is not, in and of itself, sufficient to provide any meaningful level of statistical confidence that CWD is not present within the population at the facility. However, in concert with effective surveillance, increased confidence can be obtained. The success of control and mitigation of infectious diseases is dependent on how soon the disease is detected after it is introduced, how quickly the source of the outbreak is identified, and how quickly infected animals can be isolated. The most effective first step in managing a disease outbreak in a herd of animals is to isolate those individuals known to have been in contact with infected individuals and then test those animals.  Unfortunately, as noted previously, the only CWD tests for deer currently approved by USDA must be performed post-mortem (i.e., there is currently no accepted live-animal test). The department recognizes that deer breeders have a considerable investment in their facilities and herds, and that preserving business continuity is an important consideration within the regulatory context.

         The testing requirement for TC 2 breeding facilities in proposed §65.92(b)(2) is the result of a statistical model developed by the department, in consultation with the TAHC, based on the reported average annual adult-mortality rate for all breeding facilities, which is approximately 4.5 percent. Thus, testing 4.5 percent of the adult population is equivalent to testing 100 percent of expected adult mortalities. As an example, a breeding facility with 100 adult deer that did not test 50% of the eligible mortalities during the previous two reporting periods would have the option to submit five “not detected” test results, which could include test results submitted during the previous two years. This standard is more stringent than the disease-testing requirements prior to the adoption of the emergency rules. The intent of this approach is to provide an enhanced method for detection of CWD early enough to allow for an effective response.

         Proposed new §65.92(b)(3) would establish that a breeding facility is a TC 3 facility if it is neither a TC 1 nor a TC 2 facility. The proposed new paragraph also would stipulate that a TC 3 facility could achieve TC 2 status by submission of “not detected” CWD test results for each breeder deer received by the facility from a CWD-positive site and for 4.5 percent (or more) of the average number of adult deer within the facility during the previous two reporting years. Obviously, a TC 3 facility represents the lowest confidence with respect to the presence of CWD. Therefore, the proposed new rules would allow transfer of breeder deer from a TC 3 only if it provided “not detected” test results for a sufficient number of adult deer in the facility in addition to any exposed deer associated with the facility (and was not under a hold order issued by TAHC). Proposed new §65.92(b)(3)(C) would require all deer transferred from a TC 3 breeding facility to a DMP facility, including buck deer that are returned from a DMP facility to a breeding facility, to be eartagged with an RFID/NUES tag.          As has been discussed, the proposed new rules create a classification system for breeding facilities that is based on the extent to which the facility is believed to have been exposed to CWD and the testing history of the facility. A DMP permit authorizes the temporary detention of free-ranging deer for breeding purposes; therefore, if a breeder deer is introduced to a DMP pen, those free-ranging deer come into contact with the breeder deer, and when they are released, they therefore come into contact with additional free-ranging deer. This scenario is epidemiologically analogous to the release of breeder deer to a Class III release, for which proposed new §65.92(a)(3) also impose eartagging requirements.

         Proposed new §65.92(c) would allow breeder deer to be temporarily transferred to a veterinarian for medical care. The department has determined that the temporary movement of breeder deer to a veterinary medical facility for treatment poses a low risk of transmitting CWD.

         Proposed new §65.93, concerning Release Sites — Qualifications and Testing Requirements, would set forth provisions generally applicable to locations where breeder deer are released to the wild. As noted above, the proposed rules classify release sites based on relative level of risk. More specifically, the classification of a release site is based on the release site’s level of risk, including exposure to deer from a CWD-positive facility. Proposed new §65.93 establishes testing and other requirements associated with release sites generally and with specific classes of release sites.

         Proposed new §65.93(a) would establish those provisions generally applicable to release sites.

         Proposed new §65.93(a)(1) would stipulate that an approved release site consists solely of the specific tract of land and acreage designated as a release site in TWIMS.  Proposed new §65.93(a)(2) also would require all release sites to be surrounded by a fence of at least seven feet in height that is capable of retaining deer at all times.  Proposed new §65.93(a)(2) also would require the owner of the release site to be responsible for ensuring that fencing and associated infrastructure retain the deer under ordinary and reasonable circumstances. 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.

         Proposed new §65.93(a)(3) would set forth the on-site harvest documentation requirements for Class II and Class III release sites. The proposed new paragraph would require the owner of a Class II or Class III release site to maintain a daily harvest log at the release site. For each deer harvested from a Class II or Class III release site, 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 March 15 of each year.

         Proposed new §65.93(a)(4) would provide that a release site’s status 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 landowner subject to the provisions of the proposed new rules should not be able to avoid compliance simply by selling, donating, or trading the property to another person related to the seller.

         Proposed new §65.93(a)(5) would require the owner of a release site, as a consequence of 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. The proposed new rules contemplate a disease management strategy predicated on the results of CWD testing. Incomplete, inadequate, or tardy reporting of test results confounds that strategy. For this reason, the proposed new paragraph would establish a date certain for reporting test results to the department. The proposed new paragraph also would provide that failure to timely submit test results will result in the release site being declared ineligible to be a destination for future releases. In light of the threat that CWD poses to native and farmed deer, it is prudent to suspend release site privileges for any landowner who does not comply with the testing requirements for release sites.

         Proposed new §65.93(a)(6) would prohibit any person from intentionally causing or allowing any live deer to leave or escape from a release site. The proposed new provision is necessary to ensure that once a release site has received breeder deer, no deer from the release site (breeder deer or free-ranging deer) are able to come into contact with surrounding populations of free-ranging deer.

         Proposed new §65.93(b) would enumerate the three categories of release sites and the testing requirements for each.

         Proposed new §65.93(b)(1) would establish that a release site is a Class I release site if it is not a Tier 1 facility and it receives breeder deer only from TC 1 facilities. Because a TC 1 facility has a “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program, a TC 1 facility is considered to be adequately monitoring for CWD. As a result, there are no additional testing requirements imposed by the proposed new rules on Class I release sites.

         Proposed new §65.93(b)(2) would establish that a release site is a Class II release site if it is not a Tier 1 facility, receives any breeder deer from a TC 2 facility, and receives no breeder deer from a TC 3 facility. The Class II designation is an intermediate category intended for release sites that have not received breeder deer from higher risk sources (i.e., Tier 1 and/or TC 3 facilities) but at the same time have not received deer solely from TC 1 facilities.  Such release sites are considered to present more risk than Class I but less risk than Class III for harboring CWD. Proposed new §65.93(b)(2)(B) also would impose testing requirements for Class II release sites. Specifically, if deer are harvested by hunters on a Class II release site during an open deer season, the landowner must test either a number of deer equivalent to 50 percent of the number of breeder deer released at the site between the last day of the previous year’s deer season and the end of any open season for deer in the current year, or 50 percent of all deer harvested by hunters, whichever value is lower. The proposed new paragraph would also provide that if any hunter-harvested deer were breeder deer released between the end of the previous deer season and the current deer season, 50 percent of those deer must be submitted for CWD testing, which may be counted to satisfy the requirements of §65.93(b)(2)(B).

         As mentioned previously in this preamble, from an epidemiological perspective, not being a Tier 1 facility is not, in and of itself, sufficient to provide high statistical confidence that CWD is not present or has not been introduced within the population at the release site. However, in concert with effective surveillance, increased confidence can be obtained. The success of control and mitigation of infectious diseases is dependent on how soon the disease is detected after it is introduced, how quickly the source of the outbreak is identified, and how quickly infected animals can be isolated. Although the most efficacious monitoring regime on a release site would be to require 100 percent of all harvested deer to be submitted for testing, the department is proposing to require the testing of only 50 percent of hunter-harvested deer at this time.

         Proposed new §65.93(b)(3) would establish that a release site is a Class III site release site if it is a Tier 1 facility (it has received deer from a CWD-positive facility) or it receives deer from an originating facility that is a TC 3 facility (the default status for breeding facilities that cannot provide statistical confidence that CWD is not present in the facility).  The Tier 1 and TC 3 designations represent those environments that have the highest likelihood of harboring CWD; accordingly, the proposed new paragraph would require the landowner of a Class III release site to test 100 percent of all hunter-harvested deer or one hunter-harvested deer per breeder deer released between the end of the previous year’s deer season and the end of the current deer season, whichever results in the greatest number of test results.

         Again, the department emphasize that the proposed new rules, if adopted, would be an interim replacement for the current emergency rules adopted on August 18, 2015 (40 TexReg 5566), (“emergency CWD rules”). As noted previously, based additional information from the ongoing epidemiological investigation, disease surveillance data collected from captive and free ranging deer herds, guidance from the TAHC, and input from stakeholder groups, the department intends to review the interim rules following the close of the deer season and present the results of that review to the Commission in the spring of 2016 for possible modifications.

2. Fiscal Note.

         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 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.

3. Public Benefit/Cost Note.

         Mr. Wolf also has determined that for each of the first five years the new rules as proposed are in effect:

         (A) 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 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.

         (B) There will be adverse economic impact on persons required to comply with the  rules as proposed, which are the same as the adverse economic impacts to small and microbusinesses, which are addressed later in this preamble.

         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 recordkeeping 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.

         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 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 difficult. 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 for 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 the 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 rules from marketplace behavior that is the result of the discovery of CWD. For reasons unrelated to the regulations, it is possible, perhaps even likely, that breeders and release site owners would 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 by CWD-positive facilities, and facilities prohibited from transfer by TAHC hold order (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 (and 429 TC 3 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 rules, breeder deer from a TC 1 facility can more easily be sold to other breeders or to landowners for purposes of liberation on a release site. In addition, TC 1 facilities are already subject to monitoring and testing at a higher level. Department records indicate that there are currently 63 TC 1 facilities in the state.

         For TC 2 facilities, the adverse economic impact of the proposed new rules would consist of the cost of the additional testing requirements (described in more detail below) and 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.  Department records indicate that there are currently 759 TC 2 facilities in the state, and that in the last year, 528 of them transferred breeder deer to facilities that are now TC 1 or Class I release sites. The most breeder deer transferred from any breeding facility was 175, but the overwhelming majority of transfers were 10 or fewer deer. The impact to the deer breeder would be the loss of the sale and any attendant profit from the sale of deer. 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.

         However, as noted previously, under the §65.92(b) of the proposed rules, only those breeding facilities that are not Tier I facilities and have obtained a “fifth-year” or “certified” status from TAHC, are considered TC 1 facilities.  In order to maintain “fifth year” or “certified” from TAHC, such facilities may receive deer only from other “fifth-year” or “certified” breeding facilities. Therefore, it should be noted, that a TC 1 facility was not a likely destination for a breeder deer from a TC 2 facility under previous regulations.

         For TC 3 facilities, the adverse economic impact of the proposed new rules would consist of the cost of the additional testing requirements (described in more detail below) and possible loss of sales to TC 1 and TC 2 facilities and Class I and Class II release sites. The proposed new rules would not prohibit the transfer of breeder deer by TC 3 facilities unless the facility is a CWD-positive facility or prohibited from transferring deer under a TAHC hold order (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). Because the proposed new rules would cause any facility or release site of higher status that accepts deer from a TC 3 facility to assume the status (and regulatory obligations, such as testing) of that facility, it can be assumed that higher status facilities and release sites will be less likely destinations for breeder deer coming from facilities of lower status.  Department records indicate that there are currently 497 TC 3 facilities in the state, and that last year, 288 of them transferred breeder deer to facilities that are now higher-status facilities or release sites. The greatest number of breeder deer transferred from any breeding facility last year that is now a TC 3 facility was 111, but the overwhelming majority of transfers were 10 or fewer deer. As previously mentioned in this analysis, the department does not require holder 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 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 breeder facilities that are CWD-positive or that have received exposed breeder deer, which would result in an adverse economic impact to deer breeders whose facilities are either an index facility or a Tier 1 facility, or both. 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 would be due to the proposed regulations. Department records indicate that there are two CWD-positive breeding facilities and 104 Tier 1 breeding facilities that are currently not eligible to transfer deer. The department notes that with the exception of breeding facilities that are CWD-positive, the proposed new rules allow Tier 1 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

         The proposed new rules would cause an adverse economic impact to deer breeders and release site owners who must undertake disease-testing requirements to continue certain activities. As a result, deer breeders who are not TC 1 facilities 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 test 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.

          Facilities that are seeking to become “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 estimates that the direct economic impact of testing in order become “movement qualified” under the proposed new rules would be between $52 and $92 per deer per year for each permittee who desires to meet to criteria for moving deer under the proposed new rules. If the sample is collected, fixed, and submitted by a private veterinarian, the cost could be higher. However, it should be noted that under previous rules, a breeder facility that sought to transfer deer was required to test 20 percent of eligible mortalities for CWD.  Therefore, only that portion of the estimated testing costs associated with the additional testing under the proposed new rules would be the result of the proposed rules.

         For a TC 1 facility, the difference between the current rules and the proposed new rules would be the requirement to have “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program, which required the testing of all mortalities aged 12 months or more (rather than 20 percent, as currently required by department rules), and the cost of an annual inventory conducted by an accredited veterinarian (which is also required by TAHC regulations (4 TAC §40.3)). However, as noted above, current TC 1 facilities were already complying with these TAHC requirements. This impact would be only for those facilities that are not TC 1 facilities but are seeking to obtain this TC 1 status in order to more easily transfer deer.

         For a TC 2 facility, the difference between the current rules and proposed new rules would be the requirement to test 4.5 percent or 50 percent of all eligible mortalities (rather than 20 percent, as currently required). Such costs would be necessary only if a TC 2 facility owner wishes to engage in activities involving movement of deer to deer breeding facilities and release sites of certain status.

         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 provide 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 addition to eligible mortalities), 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.

Release Sites

         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 would be subject to the testing requirements imposed by the proposed rules. Department data indicate that 26,684 breeder deer were liberated at 1,594 release sites in the last year (an average 17.4 deer per release). The single largest liberation was 175 deer in a single transaction in the 2014-2015 permit year, but the vast majority of releases involved fewer than 10 deer.

         For a Class II release site, if deer are hunter-harvested, a number of deer equivalent to 50 percent of the number of breeder deer released at the site 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 must be tested, or 50 percent of all hunter-harvested deer. The proposed new rules also requires 50 percent of any hunter-harvested deer that were released breeder deer to tested, which may be counted to satisfy the total testing requirement.

         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 season in the current year.

         The analysis of CWD testing costs for deer breeding facilities presented earlier in this preamble also applies to release sites.

         Also, because the proposed new rules require all release sites 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 last year, and that the practice is extremely rare because the deer 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.

Alternatives Considered

         The department considered several alternatives to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply. The department considered proposing no rules. This alternative was rejected because the presence of CWD in breeding facilities is not hypothetical, but has been confirmed and presents an actual, direct threat to free-ranging and farmed cervid populations and the economies that depend upon them. A regulation that clearly sets out prudent and sensible restrictions on the regulated community is more likely to achieve the desired result of stemming the spread of CWD than having no regulations. The department concluded that the need to protect the wildlife resources that sustain the state’s annual multi-billion-dollar hunting industry outweighs the temporary adverse impacts to small and micro-businesses and persons required to comply.

         The department also considered, in lieu of a regulatory response, the alternative of attempting to eliminate CWD at the CWD-positive sites and Tier 1 facilities by conducting a depopulation event, which means killing every deer within those sites in the hopes of eliminating the reservoir for the disease as well as identifying the source of the outbreak. This alternative was rejected because it would result in the destruction of several thousand deer and thus would have significant implications to business continuity of some deer breeders (the two CWD-positive facilities and the 104 breeding facilities that are now Tier 1 facilities). Furthermore, removing every animal that exists within an affected area does not remove prions (the infectious agent believed to cause CWD), which can be shed by an infected animal and remain in the environment and which in turn can infect susceptible animals introduced to or inhabiting the environment.

         The department also considered 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.

         (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not result in direct impacts to local economies.

         (D) 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.

4. Request for Public Comment.

         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.

5. Statutory Authority.

         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 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 C, E, L, R, and R-1.

6. Rule Text.

         §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 facility — A laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD.

                 (2) 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.

                 (3) Confirmed — A CWD test result of “positive” received from the National Veterinary Service Laboratories of the United States Department of Agriculture.

                 (4) CWD — chronic wasting disease.

                 (5) CWD-positive facility — A facility registered in TWIMS and in which CWD has been confirmed.

                 (6) Deer breeder — A person who holds a valid deer breeder’s permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.

                 (7) Deer breeding facility (breeding facility) — 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.

                 (8) Department (department) — Texas Parks and Wildlife Department

                 (9) Eligible mortality — A breeder deer that has died within a deer breeding facility and:

                         (A) is 16 months of age or older; or

                         (B) if the deer breeding facility is enrolled in the TAHC CWD Herd Certification Program, is 12-months of age or older.

                 (10) Exposed deer — Unless the department determines through an epidemiological investigation that a specific breeder 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 that facility.

                 (11) Hunter-harvested deer — A deer required to be tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).

                 (12) Landowner (owner) — Any person who has an ownership interest in a tract of land, and includes a landowner’s authorized agent.

                 (13) Landowner’s authorized agent — A person designated by a landowner to act on the landowner’s behalf.

                 (14) NUES tag — An ear tag approved by the United States Department of Agriculture for use in the National Uniform Eartagging System (NUES).

                 (15) Originating facility — The source facility identified on a transfer permit.

                 (16) Reconciled herd — 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.

                 (17) Release site — A specific tract of land that has been approved by the department for the release of breeder deer under this division.

                 (18) Reporting year — For a deer breeder, the period of time from April 1 of one calendar year to March 31 of the next calendar year.

                 (19) RFID tag — A button-type ear tag conforming to the 840 standards of the United States Department of Agriculture’s Animal Identification Number system.

                 (20) Status — The level of testing required by this division for any given deer breeding facility or release site. For the transfer categories established in §65.92(b) of this title (relating to Transfer Categories and Requirements), 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 §65.93(b) of this title (relating to Release Sites — Qualifications and Testing Requirements), Class I is the highest status and Class III is the lowest.

                 (21) Tier 1 facility — Any facility registered in TWIMS that has:

                         (A) received an exposed deer within the previous five years; or

                         (B) transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility; and

                         (C) is under a TAHC hold order.

                 (22) TAHC — Texas Animal Health Commission.

                 (23) 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).

                 (24) TAHC Herd Plan — A set of requirements for disease testing and management developed by TAHC for a specific facility.

                 (25) 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 may be transferred anywhere for any purpose.

                 (c) Notwithstanding any other provision of this chapter, no person shall introduce into or remove breeder deer from or allow or authorize breeder deer to be introduced into or removed from any deer breeding facility for which a CWD test result of ’suspect’ has been obtained from an accredited testing facility. The provisions of this subsection take effect immediately upon the notification of a CWD ’suspect’ test result for a deer breeding facility, and continue in effect until the department expressly authorizes the resumption of permitted activities at that facility.

                 (d) No exposed breeder deer may be transferred from a breeding facility unless expressly authorized in a TAHC herd plan and then only in accordance with the provisions of this division.

                 (e) A breeding facility (including a facility permitted after the effective date of this subsection) or release site 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.

                 (f) A facility that has dropped in status may increase in status as follows:

                         (1) from TC 3to TC 2: by complying with the provisions of §65.92(b)(3)(B) of this title (relating to Transfer Categories and Requirements) for a period of two consecutive years;

                         (2) from TC 2 to TC 1 status: by attaining “fifth-year”  or “certified” status in the TAHC CWD Herd Certification Program.

                 (g) A CWD test is not valid unless it is performed by an accredited testing facility on the obex of an eligible mortality, which may be collected by anyone. A medial retropharyngeal lymph node collected from the eligible mortality by an accredited veterinarian or other person approved by the department may be submitted to an accredited testing facility for testing in addition to the obex of the eligible mortality.

                 (h) Unless expressly provided otherwise in this division, all applications and notifications required by this division shall be submitted electronically via TWIMS or by another method expressly authorized by the department.

                 (i) A person who possesses or receives white-tailed deer or mule deer under the provisions of this division and Subchapter 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.

         §65.92. Transfer Categories and Requirements.

                 (a) General.

                         (1) A breeding facility that is a TC 1, TC 2, or TC 3 facility may transfer breeder deer under a valid 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:

                                  (A) another breeding facility;

                                  (B) an approved release site as provided in §65.93 of this division (relating to Release Sites — Qualifications and Testing Requirements);

                                  (C) a DMP facility under Chapter 65, Subchapter D of this title (relating to Deer Management Permits); or

                                  (D) to another person for nursing purposes.

                         (2) Notwithstanding the provisions of paragraph (1) of this subsection, a breeding facility is prohibited from transferring breeder deer anywhere for any purpose if:

                                  (A) such a transfer is not authorized pursuant to a TAHC Herd Plan associated with a hold order or quarantine;

                                  (B) “not detected” CWD test results have been submitted for less than 20percent of eligible mortalities at the breeding facility since May 23, 2006;

                                  (C) the breeding facility has an unreconciled herd inventory; or

                                  (D) the breeding facility is not in compliance with the provisions of §65.608 of this title (relating to Annual Reports and Records).

                         (3) A deer breeder may not transfer a breeder deer to a Class III release site unless the deer has been tagged by attaching a button-type RFID or NUES tag approved by the department to one ear.

                         (4) A deer breeding facility that was initially permitted after March 31, 2015 will assume the lowest status among all originating facilities from which deer are received; provided, however, a breeding facility shall not assume TC 1 status unless it meets the criteria established in subsection (b)(1) of this section.

                 (b) Types of Facilities.

                         (1) TC 1. A breeding facility is a TC 1 facility if:

                                  (A) it is not a Tier 1 facility; and

                                  (B) it has “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program.

                         (2) TC 2. A breeding facility is a TC 2 facility if:

                                  (A) it is not a Tier 1 facility; and

                                  (B) CWD test results of “not detected” have been returned for one of the following values, whichever represents the lowest number of tested breeder deer:

                                          (i) 4.5 percent or more of the breeder deer held within the facility during the immediately preceding two reporting years, based on the average population of deer in the facility that were at least 16 months of age on March 31 of each year (including eligible mortalities for those years); or

                                          (ii) 50 percent of all eligible mortalities from the preceding two reporting years, provided at least one eligible mortality was tested.

                         (3) TC 3.

                                  (A) A breeding facility is a TC 3 facility if it is neither a TC 1 facility nor a TC 2 facility.

                                  (B) A breeding facility may increase status from TC 3 to TC 2 if CWD test results of “not detected” have been obtained for:

                                          (i) each breeder deer received by the breeding facility from any CWD-positive site;

                                          (ii) each exposed breeder deer that has been transferred by the breeding facility to another breeding facility or released; and

                                          (iii) 4.5 percent or more of the breeder deer held within the breeding facility during the immediately preceding two reporting years, based on the average population of deer in the facility that were at least 16 months of age on March 31 of each year (including eligible mortalities for those years).

                                  (C) All deer transferred from a TC 3 breeding facility to a DMP facility, including buck deer that are returned from a DMP facility to a breeding facility, must be eartagged with an RFID/NUES tag.

                 (c) Breeder deer may be temporarily transferred to a veterinarian for medical care.

         §65.93. Release Sites — Qualifications and Testing Requirements.

                 (a) General.

                         (1) An approved release site consists solely of the specific tract of land and acreage designated as a release site in TWIMS.

                         (2) All release sites 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 the deer under ordinary and reasonable circumstances.

                         (3) The owner of a Class II or Class III release site shall maintain a legible daily harvest log at the release site.

                                  (A) The daily harvest log shall be on a form provided or approved by the department and shall be maintained until the report required by subparagraph (E) of this paragraph has been submitted to and acknowledged by the department.

                                  (B) For each deer harvested on the release site and tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation), the landowner must, on the same day that the deer is harvested, legibly enter the information required by this subparagraph in the daily harvest log.

                                  (C) The daily harvest log shall contain the following information for each deer harvested on the release site:

                                          (i) the name and hunting license of the person who harvested the deer;

                                          (ii) the date the deer was harvested;

                                          (iii) the species (white-tailed or mule deer) and type of deer harvested (buck or antlerless);

                                          (iv) any alphanumeric identifier tattooed on the deer;

                                          (v) any RFID or NUES tag number of any RFID or NUES tag affixed to the deer; and

                                          (vi) any other identifier and identifying number on the deer.

                                  (D) The daily harvest log shall be made available upon request to any department employee acting in the performance of official duties.

                                  (E) By not later than March 15 of each year, the owner of a release site shall submit the contents of the daily harvest log to the department via TWIMS or other format authorized by the department.

                         (4) Release site status 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.

                         (5) 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. Failure to comply with this paragraph will result in the release site being declared ineligible to be a destination for future releases.

                         (6) No person may intentionally cause or allow any live deer to leave or escape from a release site.

                 (b) Types of Release Sites

                         (1) Class I.

                                  (A) A release site is a Class I release site if it:

                                          (i) is not a Tier 1 facility; and

                                          (ii) receives breeder deer only from TC 1 facilities.

                                  (B) There are no testing requirements for a Class I release site.

                         (2) Class II.

                                  (A) A release site is a Class II release site if it:

                                          (i) is not a Tier 1 facility;

                                          (ii) receives any breeder deer from TC 2  facility; and

                                          (iii) receives no deer from a TC 3 facility.

                                  (B) The landowner of a Class II release site must obtain valid CWD test results for one of the following values, whichever represents the lowest number of deer tested:

                                          (i) if deer are hunter-harvested, a number of deer equivalent to 50 percent of the number of breeder deer released at the site 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; or

                                          (ii) 50 percent of all hunter-harvested deer.

                                  (C) If any hunter-harvested deer were 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, 50 percent of those hunter-harvested deer must be submitted for CWD testing, which may be counted to satisfy the requirements of subparagraph (B) of this paragraph.

                         (3) Class III.

                                  (A) A release site is a Class III release site if:

                                          (i) it is a Tier 1 facility; or

                                          (ii) it receives deer from an originating facility that is a TC 3 facility.

                                  (B) The landowner of a Class III release site must obtain valid 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 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.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on