Special Work Session Agenda Item No. 7
Presenter: Mitch Lockwood
Special Work Session
Chronic Wasting Disease -Disease Detection and Response
Request Permission to Publish Proposed Rules in the Texas Register
October 5, 2022
I. Executive Summary: Staff seek authorization to publish proposed amendments to the comprehensive Chronic Wasting Disease (CWD) rules in the Texas Register for public comment.
II. Discussion: CWD, a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, red deer, sika, and others (which will be referred to as susceptible species), has been detected in seven permitted deer breeding facilities since March 23, 2021. Texas Parks and Wildlife Department (TPWD), along with Texas Animal Health Commission (TAHC), has been engaged in an ongoing battle with CWD in Texas since 2002. Regarding the current situation involving CWD in permitted deer breeding facilities, TPWD records indicate that within the last five years, the seven CWD-positive facilities transferred a total of 2,530 deer to 270 locations in 102 counties and eight locations in Mexico (the destinations included 139 deer breeding facilities, 118 release sites, five Deer Management Permit sites, and three nursing facilities). Emergency rules were filed on June 22, 2021, intended to address significant concerns for CWD being transferred from deer breeding facilities where the disease may exist undetected, but those rules expire after 180 days, and amendments to the comprehensive rules are necessary to mitigate risks not currently addressed in the current rules.
It is apparent that prior to the recent emergency rules, the CWD detection rules were ineffective detecting CWD earlier in the deer breeding facilities where it was eventually discovered and had been present for some time, which introduces additional concern regarding adequate mitigation of the risk of transferring CWD-positive breeder deer to release sites where released breeder deer come into contact with free-ranging deer. Vigilance is crucial to minimizing the severity of biological and economic impacts that could result from the current situation. Therefore, TPWD believes that the amendments to the comprehensive CWD rules including enhanced CWD-testing requirements for deer breeding facilities as well as antemortem testing of breeder deer prior to any release, is a wise and responsible course of action.
III. Recommendation: Staff request that the Texas Parks and Wildlife Commission authorize TPWD to publish the following rules in the Texas Register:
Attachments – 2
Special Work Session Agenda Item No. 7
Exhibit A
DIVISION 1 CHRONIC WASTING DISEASE (CWD)
§65.80. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words in this subchapter shall have the meanings assigned by Parks and Wildlife Code.
(1) [Adult deer — A white-tailed deer or mule deer that is 16 months of age or older.]
[(2)] Containment Zone (CZ) — A department-defined geographic area in this state within which CWD has been detected or the department has determined, using the best available science and data, CWD detection is probable.
[(3) Eligible mortality — Any lawfully possessed adult deer that has died.]
(2) Herd Plan — A set of requirements for disease testing and management developed by the department and TAHC for a specific facility.
(3)[(4)] Surveillance Zone (SZ) — A department-defined geographic area in this state within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected.
(4)[(5) Susceptible species — Any species or part of a species of wildlife resource that is susceptible to CWD.
§65.81. Containment Zones; Restrictions. The areas described in paragraph (1) of this section are CZs.
(1) (No change.)
(2) Restrictions.
(A) Except as provided in this section or §65.87 of this title (relating to Exception), no person within a CZ shall conduct, authorize or cause any activity involving the movement of a susceptible species under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1. Such prohibited activity, includes, but is not limited to transportation, introduction, removal, authorizing the transportation, introduction or removal of, or causing the transportation, introduction or removal of a live susceptible species into, out of, or within a CZ.
(B) If any portion of a deer breeding facility or release site is within a CZ, the entirety of the deer breeding facility or release site is in the CZ.
(C) If the department receives an application for a deer breeder permit for a new facility that is to be located within an area designated as a CZ, the department will issue the permit but will not authorize the possession of susceptible species within the facility so long as the CZ designation exists.
(D) Deer that escape from a deer breeding facility within a CZ may not be recaptured unless specifically authorized under a [hold order or] herd plan [issued by the Texas Animal Health Commission].
(E) A [TC 1] deer breeding facility that is located in a CZ and designated by the department as MQ under the provisions of Division 2 of this subchapter may:
(i) receive deer from any facility in the state that is authorized to transfer deer; [and]
(ii) release or transfer breeder deer within the CZ.
[(F) A TC 2 deer breeding facility located within a CZ may release breeder deer to immediately adjoining acreage if:]
[(i) the title in the county deed records reflects that the surface of the release site and of the breeding facility is held by the same owner or owners; and]
[(ii) each breeder deer released has, within 60 days prior to release, been subjected to a tonsil biopsy test for CWD with a result of "not detected."]
(F)[(G)] Except as authorized by §65.83 of this title (relating to Special Provisions) breeder [Breeder] deer may not be transferred to or from a [TC 3] deer breeding facility that is:
(i) located within a CZ and;
(ii) subject to the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD).
(G)[(H)] Breeder deer [from any deer breeding facility designated as Movement Qualified under the provisions of Division 2 of this subchapter may be] released within a CZ must be tested as provided in this subparagraph.[, provided the breeding facility is authorized to release deer under the provisions of this division; and]
[(i)] If breeder deer are released[that if a release occurs] during a "hunting year" (as defined in §65.90 of this title (relating to Definitions)), harvest at the release site must be equal to or greater than the number of breeder deer released at that site before the last day of the hunting year, otherwise the harvest and reporting requirements of this subparagraph must be met before the last day of the hunting year immediately following the release.[; and]
(H)[(ii)] The[the] owner of a release site located within a CZ shall comply[the release site complies] with the requirements of §65.93 of this title (relating to Harvest Log).
(I)[(iii)] A person who fails to comply with the requirements of subparagraph (G)[(H)] of this paragraph commits an offense as provided in Parks and Wildlife Code, §43.367 and §65.89 of this division, and the department shall not authorize the additional release of breeder deer to that release site.
§65.82. Surveillance Zones; Restrictions. The areas described in paragraph (1) of this section are SZs.
(1) (No change.)
(2) Restrictions.
(A) Except as provided in §65.87 of this title (relating to Exception) and subparagraph (B) of this paragraph, no person within a SZ may conduct, authorize or cause any activity involving the movement of a susceptible species, into, out of, or within a SZ under a permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1. Such prohibited activity, includes, but is not limited to transportation, introduction, removal, authorizing the transportation, introduction or removal, or causing the transportation, introduction or removal of a live susceptible species into, out of, or within a SZ.
(B) Breeder Deer.
(i) Except as provided in Division 2 of this subchapter, a breeding facility that is within a SZ [and designated as a:]
[(I) TC 1 breeding facility] may:
(I)[(-a-)] transfer to or receive breeder deer from any other deer breeding facility in this state that is authorized to transfer deer; and
II[(-b-)] transfer breeder deer in this state for purposes of liberation, including to release sites within the SZ.
[(II) TC 2 breeding facility:]
[(-a-) may receive deer from any facility in the state that is authorized to transfer deer;]
[(-b-) may transfer deer to a breeding facility or release site that is within the same SZ; and]
[(-c-) is prohibited from transferring deer to any facility outside of the SZ.]
(ii) Deer that escape from a breeding facility within a SZ may not be recaptured unless specifically authorized under a [hold order or] herd plan [issued by the Texas Animal Health Commission].
(C) Breeder deer from a deer breeding facility located outside a SZ may be released within a SZ if authorized by Division 2 of this subchapter.
(D) Except as authorized by §65.83 of this title (relating to Special Provisions) breeder deer may not be transferred to or from a deer breeding facility that is:
(i) located within a SZ; and
(ii) subject to the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD).
(E)[(D)] Permits to Transplant Game Animals and Game Birds (Triple T permit). The department may authorize the release of susceptible species in a SZ under the provisions of a Triple T permit issued by the department under the authority of Parks and Wildlife Code, Chapter 43, Subchapter E and the provisions of Subchapter C of this chapter, but the department will not authorize the trapping of deer within a SZ for purposes of a Triple T permit.
(F)[(E)] Deer Management Permit (DMP). The department may issue a DMP for a facility in a SZ; however, any breeder deer introduced to a DMP facility in a SZ must be released to the property for which the DMP is issued and may not be transferred anywhere for any purpose.
§65.83. Special Provisions. A [TC 3] breeding facility that is located in a CZ or SZ and subject to the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD) may release breeder deer to adjoining acreage under the same ownership, provided:
(1) the title in the county deed records reflects that the surface of the release site and of the breeding facility is held by the same owner or owners;
(2) the release is specifically authorized in a herd plan [prepared for the facility by the Texas Animal Health Commission and TPWD]; and
(3) the [TC 3] breeding facility that releases breeder deer under the provisions of this section is in compliance with all applicable provisions of this subchapter, including provisions relating to the testing of released breeder deer, except as specifically exempted under a herd plan [prepared and approved by the department and TAHC].
§65.84. Powers and Duties of the Executive Director.
(a) The executive director may designate any geographic area in this state a CZ or SZ if the area meets the applicable definition set forth in §65.80 of this title (relating to Definitions).
(b) The executive director shall notify the presiding officer of the commission prior to taking any action under the provisions of subsection (a) of this section.
(c) The executive director shall ensure that the department makes a reasonable effort to provide public notice in the event that a CZ or SZ is declared.
(d) The designation of a CZ or SZ under the provisions of subsection (a) of this section is:
(1) effective immediately; and
(2) applicable to all permits issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, and R-1.
(e) The department shall initiate rulemaking to adopt any CZ or SZ designated by the executive director as soon as practicable.
§65.85. Mandatory Check Stations.
(a) The department may establish mandatory check stations in any CZ or SZ or portion of a CZ or SZ for the purpose of collecting biological information on susceptible species taken within a CZ or SZ.
(b) In a CZ or SZ where mandatory check stations have been established, the intact, unfrozen head of any susceptible species that has been killed must be presented to a designated check station within 48 hours of take by the person or representative of the person who killed the susceptible species, unless otherwise authorized in writing by department personnel.
(c) The department will issue documentation for each specimen of a susceptible species that is presented at a check station. The department-issued documentation must remain with the specimen until it reaches the possessor’s final destination.
(d) A person who fails or refuses to comply with this section commits an offense.
§65.86. Preemption. To the extent a provision of this division conflicts with a provision of another subchapter of this chapter, or Division 2 of this subchapter, this division controls.
§65.87. Exception. The department may waive any provision of this subchapter as necessary for the holder of a scientific research permit when the proposed research is determined to be of use in advancing the understanding the etiology of CWD in susceptible species.
§65.88. Deer Carcass Movement Restrictions.
(a) Except as provided in this section, no person may:
(1) transport into this state or possess any part of a susceptible species from a state, Canadian province, or other place outside of Texas where CWD has been detected in free-ranging or captive herds; or
(2) transport or cause the transport of any part of a susceptible species from a property within a CZ or SZ.
(b) Subsection (a) of this section does not apply to susceptible species processed in accordance with this subsection, provided the applicable requirements of subsections (c) — (e) of this section have been met:
(1) meat that has been cut up and packaged (boned or filleted);
(2) a carcass that has been reduced to quarters with no brain or spinal tissue present;
(3) a cleaned hide (skull and soft tissue must not be attached or present);
(4) a whole skull (or skull plate) with antlers attached, provided the skull plate has been completely cleaned of all internal soft tissue;
(5) finished taxidermy products;
(6) cleaned teeth; or
(7) tissue prepared and packaged for delivery to and use by a diagnostic or research laboratory.
(c) For susceptible species harvested in a CZ or SZ, the provisions of subsection (b) of this section are applicable only if the susceptible species is processed within the CZ or SZ where the susceptible species was harvested, except for the transport of an intact head to a designated check station.
(d) A susceptible species harvested in a CZ or SZ and processed in accordance with the provisions of subsections (b) and (c) of this section may be transported from the CZ or SZ, provided it is accompanied by a department-issued check-station receipt, which shall remain with the susceptible species until it reaches a final destination.
(e) The skinned or unskinned head of a susceptible species from a CZ or SZ, other state, Canadian province, or other place outside of Texas may be transported to a taxidermist for taxidermy purposes, provided all brain material, soft tissue, spinal column and any unused portions of the head are disposed of in a landfill in Texas permitted by the Texas Commission on Environmental Quality (TCEQ).
§65.89. Penalties. A person who violates any provision of this subchapter commits an offense and is subject to the penalties prescribed by Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R or R-1, and Chapter 61, as applicable.
DIVISION 2 CHRONIC WASTING DISEASE – COMPREHENSIVE MOVEMENT RULES[MOVEMENT OF DEER]
§65.90. Definitions. The following words and terms shall have the following meanings, except in cases where the context clearly indicates otherwise.
(1) Accredited testing laboratory — A laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD.
(2) Ante-mortem test — A CWD test performed on a live deer.
(3) Breeder deer — A white-tailed deer or mule deer possessed under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.
(4) Confirmed — A CWD test result of "positive" received from the Texas A&M Veterinary Medical Diagnostic Laboratory or the National Veterinary Service Laboratories of the United States Department of Agriculture.
(5) CWD — Chronic wasting disease.
(6) CWD-positive facility (positive facility) — Any facility in or on which CWD has been confirmed.
(7) Deer breeder — A person who holds a deer breeder’s permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.
(8) Deer breeding facility (breeding facility) — A facility authorized to hold breeder deer under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter (Deer Breeder’s Permit).
(9) Department (department) — Texas Parks and Wildlife Department.
(10) Deer Management Permit (DMP) — A permit issued under the provisions of Parks and Wildlife Code, Subchapter R or R-1 and Subchapter D of this chapter (relating to Deer Management Permit (DMP)) that authorizes the temporary detention of deer for the purpose of propagation.
[(11) Eligible-aged deer — ]
[(A) if the deer is held in a breeding facility enrolled in the TAHC CWD Herd Certification Program, 12 months of age or older; or]
[(B) for any other deer, 16 months of age or older.]
[(12) Eligible mortality — An eligible-aged deer that has died.]
(11)[(13)] Exposed deer — A deer that meets any of the following criteria:
(A) the deer is or has been in a breeding facility where a CWD-positive deer has been kept following the date the facility was first exposed to CWD (if known);
(B) the deer is or has been in a breeding facility within the five-year period preceding the death date of any CWD-positive deer that was in the facility (or the date of a positive ante-mortem test result); or
(C) the deer is in a breeding facility on or after the date that the facility received a deer under the circumstances described in subparagraph (A) or (B) of this paragraph. [Unless the department determines through an epidemiological investigation that a specific deer has not been exposed, an exposed deer is a white-tailed deer or mule deer that:]
[(A) is in a CWD-positive facility; or]
[(B) was in a CWD-positive facility within the five years preceding the confirmation of CWD in the CWD-positive facility.]
(12) Exposure — The period of time that has elapsed following the introduction of an exposed deer to a breeding facility.
(13)[(14)] Facility — Any location required to be registered in TWIMS under a deer breeder’s permit, Triple T permit, TTP permit, or DMP, including release sites and/or trap sites.
(14) Herd Plan — A set of requirements for disease testing and management developed by the department and TAHC for a specific facility.
(15) Hunter-harvested deer — A deer required to be tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).
(16) Hunting year — That period of time between September 1 and August 31 of any year when it is lawful to hunt deer under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation).
(17) Inconclusive—A test result that is neither “positive” nor “not detected” on the basis of clinical deficiency.
(18) "Insufficient follicles" — A test result indicating that a tonsil or rectal biopsy sample contained an insufficient number of lymphoid follicles to produce a valid test result.
[(17) Interim Breeder Rules — 31 TAC §§65.90 — 65.93, concerning Chronic Wasting Disease — Movement of Deer, adopted by the Texas Parks and Wildlife Commission on November 5, 2015, and published in the January 29, 2016 issue of the Texas Register (41 TexReg 815).]
(19)[(18)] Landowner (owner) — Any person who has an ownership interest in a tract of land and includes landowner’s authorized agent.
(20)[(19)] Landowner’s authorized agent (agent) — A person designated by a landowner to act on the landowner’s behalf.
(21) Last known exposure — The last date a deer in a trace-out breeding facility was exposed to a trace deer prior to the death or transfer of that trace deer, or the last date an exposed deer entered a Tier 1 facility.
(22)[(20)] Liberated deer — A free-ranging deer that bears evidence of having been liberated including, but not limited to a tattoo (including partial or illegible tattooing) or of having been eartagged at any time (holes, rips, notches, etc. in the ear tissue).
(23)[(21)] Movement Qualified (MQ) — A designation made by the department pursuant to this division that allows a deer breeder to lawfully transfer breeder deer.
(24)[(22)] Not Movement Qualified (NMQ) — A designation made by the department pursuant to this division that prohibits the transfer of deer by a deer breeder.
[(23) NUES tag — An ear tag approved by the United States Department of Agriculture for use in the National Uniform Eartagging System (NUES).]
[(24) Originating facility — Any facility from which deer have been transported, transferred, or released, as provided in this definition or as determined by an investigation of the department, including:]
[(A) for breeder deer, the source facility identified on a transfer permit; and]
[(B) for deer being moved under a Triple T permit, the trap site.]
(25) Post-mortem test — A CWD test performed on a dead deer.
(26) Properly executed — A form or report required by this division on which all required information has been entered.
(27) Reconciled herd — The breeder deer held in a breeding facility for which every birth, mortality, and transfer of breeder deer [in the previous reporting year] has been accurately reported as required by this division.
(28) Release—The act of liberating a deer from captivity. For the purposes of this division the terms “release” and “liberate” are synonymous.
(29)[(28)] Release site — A specific tract of land to which deer are released, including the release of deer under the provisions of this chapter or Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, or R-1.
(30)[(29)] Reporting year — For a deer breeder’s permit, the period of time from April 1 of one calendar year through March 31 of the next calendar year.
(31)[(30)] RFID tag — A button-type ear tag conforming to the 840 standards of the United States Department of Agriculture’s Animal Identification Number system.
[(31) Status — A level assigned under this division for any given facility on the basis of testing performance and the source of the deer. For the transfer categories established in §65.95(b) of this title (relating to Movement of Breeder Deer), the highest status is Transfer Category 1 (TC 1) and the lowest status is Transfer Category 3 (TC 3). For the release site classes established in §65.95(c) of this title, Class I is the highest status and Class III is the lowest.]
(32) Submit — When used in the context of test results, provided to the department, either directly from a deer breeder or via an accredited testing laboratory.
(33) Suspect — An initial CWD test result of "detected" that has not been confirmed.
(34) TAHC — Texas Animal Health Commission.
[(35) 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).]
[(36) TAHC Herd Plan — A set of requirements for disease testing and management developed by TAHC for a specific facility.]
(35) Test-eligible—
(A) Until the effective date of these rule amendments, a deer at least 16 months of age; and
(B) Beginning with the effective date of this rule, a deer at least 12 months of age.
(36)[(37)] Test, Test Result(s), or Test Requirement — A CWD test, CWD test result, or CWD test requirement as provided in this division.
(37) Tier 1 facility — A breeding facility that has received an exposed deer that was in a trace-out breeding facility.
(38) Trace deer — A deer that the department has determined had been in a CWD-positive deer breeding facility on or after the date the facility was first exposed to CWD, if known; otherwise, within the previous five years from the reported mortality date of the CWD-positive deer, or the date of the ante-mortem test result.
(39) Trace-out breeding facility — A breeding facility that has received an exposed deer that was in a CWD-positive deer breeding facility.
(40)[(38)] Trap Site — A specific tract of land approved by the department for the trapping of deer under this chapter and Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.
(41)[(39)] Triple T permit — A permit to trap, transport, and transplant white-tailed or mule deer (Triple T permit) issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds).
(42)[(40)] Trap, Transport and Process (TTP) permit — A permit issued under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter E, and Subchapter C of this chapter (relating to Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds), to trap, transport, and process surplus white-tailed deer (TTP permit).
(43)[(41)] 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 provision of this chapter other than Division 1 of this subchapter, this division prevails.
(b) Except as provided in this division, no live breeder deer or deer trapped under a Triple T permit, TTP [permit] or DMP may be transferred anywhere for any purpose.
(c) Except as provided in this division, no person shall transfer[introduce into or remove] deer to or from [or allow or authorize deer to be introduced into or removed from] any facility for which a CWD test result of "suspect" has been obtained from an accredited testing laboratory, irrespective of how the sample was obtained or who collected the sample. The provisions of this subsection take effect immediately upon the notification of a CWD "suspect" test result, and continue in effect until the department expressly authorizes the resumption of permitted activities at that facility.
(d) Notwithstanding any provision of this division, no person may cause or allow breeder deer to be moved from a facility for any purpose if such movement is prohibited by a herd plan[TAHC Herd Plan] associated with a TAHC hold order or TAHC quarantine.
[(e) A facility (including a facility permitted after the effective date of this division) that receives breeder deer from an originating facility of lower status automatically assumes the status associated with the originating facility and becomes subject to the testing and release requirements of this division at that status for:]
[(1) a minimum of two years, if the facility is a breeding facility; or]
[(2) for the period specified in §65.95(c) of this title (relating to Movement of Breeder Deer), if the facility is a release site.]
[(f) A deer breeding facility that was initially permitted after March 31, 2016 will assume the lowest status among all originating facilities from which deer are received.]
(e)[(g) The designation of status by the department in and of itself does not authorize the transfer or movement of deer.] Except as provided in §65.99(h) of this title (relating to Special Provisions – Breeding Facilities Epidemiologically Connected to Deer Infected with CWD), no [No] person may transfer[remove or cause the removal of] deer to or from a facility that has been designated NMQ by the department [pursuant to this division] unless specifically authorized by the department for the holder of a scientific research permit when the proposed research is determined to be of use in advancing the etiology of CWD in susceptible species.
(f) Immediately upon the notification that a facility has received a CWD "suspect" test result (a CWD suspect facility), all facilities that have been in possession of a deer that was held in the CWD suspect facility within the previous five years shall be designated NMQ by the department until it is determined that the facility is not epidemiologically linked to the CWD suspect deer, or it is determined upon further testing that the "suspect" deer is not a confirmed positive.
(g)[(h)] Unless expressly provided otherwise in this division, all applications, reports, and[,] notifications[, and requests for change in status] required by this division shall be submitted electronically via TWIMS or by another method expressly authorized by the department.
(h)[(i)] In the event that technical or other circumstances prevent the development or implementation of automated methods for collecting and submitting the data required by this division via TWIMS, the department may prescribe alternative methods for collecting and submitting the data required by this division.
(i)[(j)] Except as provided in this division, no person shall introduce into, remove deer from or allow or authorize deer to be introduced into or removed from any facility unless a georeferenced map (a map image incorporating a system of geographic ground coordinates, such as latitude/longitude or Universal Transverse Mercator (UTM) coordinates) showing the exact boundaries of the facility has been submitted to the department prior to any such introduction or removal.
§65.92. CWD Testing.
(a) All CWD test samples at the time of submission for testing shall be accompanied by a properly executed, department-prescribed form provided for that purpose.
(b) Except as provided in §65.95(b)(6) of this title (relating to Movement of Breeder Deer) or subsection (d) of this section[For the purposes of this division,] an ante-mortem CWD test is not valid unless it is performed by an accredited laboratory on retropharyngeal lymph node, rectal mucosa, or tonsillar tissue with at least six[6] lymphoid follicles collected within eight[six] months of submission by a licensed veterinarian authorized pursuant to statutes and regulations governing the practice of veterinary medicine in Texas and regulations of the TAHC from a live deer that:
(1) is at least 12[16] months of age; and
(2) has not been the source of a "not detected" ante-mortem test result submitted within the previous 12[24] months.
(c) A post-mortem CWD test is not valid unless it is performed by an accredited testing laboratory on the obex and[or] medial retropharyngeal lymph node of a test-eligible[an eligible] mortality, and may be collected only by a qualified licensed veterinarian, TAHC-certified CWD sample collector, or other person approved by the department.
(d) Except for the provisions of paragraphs (3) and (4) of this subsection, the provisions of this subsection take effect April 1, 2022. To meet the requirements of §65.94[(a)(1)(A) and (B)] of this title (relating to Breeding Facility Minimum Movement Qualifications), or §65.95 of this title [(relating to Movement of Breeder Deer)], ante-mortem test results may be substituted for post-mortem test results at a ratio of five[three] "not detected" ante-mortem test results for each required "not detected" post-mortem test result; however:
(1) the ante-mortem tests must be conducted within eight months of the end of the reporting year; and
(2) the number of ante-mortem test results submitted cannot exceed 30 percent of the total number of post-mortem results required by this division, multiplied by five, in more than two reporting years during the life of the permit.
(3) For a facility with sufficient deer to satisfy the ante-mortem substitution requirements of this subsection were it not for the testing frequency limitations imposed by subsection (b)(2) of this section, test results from deer at least six months of age at the time of testing may be submitted to satisfy the requirements of this subsection. The provisions of this paragraph do not apply unless all test-eligible deer in the facility have been tested prior to the testing of any deer that is six months of age or older but younger than 12 months of age.
(4) For a facility that must conduct ante-mortem testing of all test-eligible deer in the facility to regain MQ status, the department will not accept inconclusive ante-mortem test results (including, but not limited to “insufficient follicles”) for more than 10 percent of the total number of deer tested. For facilities required to test less than ten deer, inconclusive ante-mortem test results (including but not limited to “insufficient follicles”) will not be accepted.
(5) No provision of this subsection shall be construed as to relieve any permittee of the obligation to test every mortality that occurs within a breeding facility as required by §65.94 of this title.
(e) For purposes of satisfying the testing requirements of §65.94 or §65.95 of this title for the period of time between the reporting year that began April 1, 2017 and the reporting period ending March 31, 2022, ante-mortem test results may be substituted for post-mortem test results at a ratio of three "not detected" ante-mortem test results for each required "not detected" post-mortem test result.
(f)[(e)] Except as specifically provided in this division[section], an ante-mortem test result may not be used more than once to satisfy any testing requirement of this division.
(g) No ante-mortem test result may be utilized by more than one permittee to satisfy any requirement of this division.
(h) An ante-mortem test result is valid only if the deer from which it was taken is still in the inventory of the facility in which the sample was taken.
(i)[(f)] The testing requirements of this division cannot be altered by the sale or subdivision of a property to a related party if the purpose of the sale or subdivision is to avoid the requirements of this division.
[(g) The owner of a release site agrees, by consenting to the release of breeder deer on the release site, to submit all required CWD test results to the department as soon as possible but not later than May 1 of each year for as long as CWD testing is required at the release site under the provisions of this division.]
(j)[(h)] Deer breeders shall report all deer mortalities that occur within a breeding facility within seven[14] days of detection.
(k)[(i)] All CWD test samples shall be submitted to an accredited testing laboratory within seven[14] days of collection.
§65.93. Harvest Log.
(a) (No change.)
(b) For each deer harvested on the release site the landowner must, on the same day that the deer is harvested, legibly enter the following information in the daily harvest log:
(1) – (4) (No change.)
(5) any RFID [or NUES] tag number of any RFID [or NUES] tag affixed to the deer; and
(6) (No change.)
(c) – (e) (No change.)
§65.94. Breeding Facility Minimum Movement Qualification.
(a) Notwithstanding any other provision of this division, a breeding facility is designated NMQ and is prohibited from transferring breeder deer anywhere for any purpose if the breeding facility:
(1) has not:
(A) met the provisions of this subparagraph:
(i) had less than five eligible mortalities from May 23, 2006 through March 31, 2016; or
(ii) submitted CWD "not detected" test results for at least 20% of the total number of eligible mortalities that occurred in the facility since May 23, 2006; and
(B) beginning with the reporting[report] year that starts April 1, 2017, and ending March 31, 2022,[each April 1 thereafter:]
[(i) achieved "fifth-year" or "certified" status in the TAHC CWD Herd Certification Program; or]
[(ii)] submitted CWD "not detected" test results for:
(i) at least 80% of test-eligible mortalities occurring in the facility before the effective date of this section; and
(ii) 100 percent of test-eligible mortalities occurring in the facility after the effective date of this subsection[during the previous reporting year]; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the test-eligible [eligible-aged] deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by 3.6 percent; and
(C) beginning with the reporting year that starts April 1, 2022 and for each reporting year thereafter, submitted CWD "not detected" test results for 100 percent of eligible mortalities occurring in the facility during the previous reporting year; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the test-eligible deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by five percent;
(2) is not authorized pursuant to a herd plan[TAHC Herd Plan] associated with a TAHC hold order or TAHC quarantine;
(3) does not have a reconciled herd inventory; or
(4) is not in compliance with the reporting and recordkeeping provisions of this division and §65.608 of this title (relating to Annual Reports and Records).
(b) A breeding facility that has been designated as NMQ for failure to comply with the testing requirements specified in subsection (a) of this section will be restored to MQ:
(1) when the required "not detected" test results prescribed by subsection (a) of this section are submitted; or
(2) the department has designated the breeding facility MQ under the provisions of subsections (d), (e), or (f)[(f) or (g)] of this section.
[(c) If a breeding facility that has obtained TC 1 status is unable to satisfy the criteria of this subchapter necessary to maintain TC 1 status by March 31 of any year solely because tissue samples have been documented by an accredited testing facility as having been received and lost, the breeding facility status will be reduced to TC 2 unless:]
[(1) ante-mortem substitution samples necessary to maintain TC 1 status are submitted to an approved diagnostic laboratory by the latter of the following:]
[(A) May 15 immediately following the report year to which the substitution test results would apply; or]
[(B) 30 days after the date on which the breeder is notified by the accredited testing facility that the tissue samples have been lost; and]
[(2) the required number of "not detected" test results are obtained from the ante-mortem substitute samples submitted to satisfy paragraph (1) of this subsection.]
(c)[(d)] A breeding facility designated NMQ shall report all mortalities within the facility to the department immediately upon discovery of the mortality.
[(e) Immediately upon the notification that a facility has received a CWD "suspect" test result (a CWD suspect facility), all facilities that have been in possession of a deer that was held in the CWD suspect facility within the previous five years shall be designated NMQ by the department until it is determined that the facility is not epidemiologically linked to the CWD suspect deer, or it is determined upon further testing that the "suspect" deer is not a confirmed positive.]
(d)[(f)] Notwithstanding the applicable provisions of §65.92[(b)(2)] of this title (relating to CWD Testing), a breeding facility that is designated NMQ and is unable to satisfy the requirements of subsection (a) of this section to achieve MQ status may be designated MQ by the department, provided:
(1) the facility has not received any exposed deer;
(2) there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory reported in TWIMS;
(3) the department has determined that the number of test-eligible[eligible-aged] deer in the facility is not sufficient to provide the necessary ante-mortem test samples to substitute for post-mortem test results;
(4) a department herd inventory inspection has been completed at least 12 months prior to the initiation of any ante-mortem testing under paragraph (5) of this subsection;
(5) all test-eligible[eligible-aged] deer in the facility are subjected to ante-mortem testing two times at an interval of not less than 12 months, beginning not less than 12 months from being designated NMQ, provided:
(A) a deer that is not test-eligible[eligible-aged] when testing under this subsection begins but reaches test-eligible[eligible-aged] status during the 12 -month interval stipulated by this paragraph is not required to be tested twice, but must be tested at least once during the 12-month interval stipulated by this paragraph. The test result must be "not detected"; and
(B) a deer that is not test-eligible[eligible-aged] when testing under this paragraph begins and does not become test-eligible[eligible-aged] during the 12-month interval stipulated by this paragraph is not required to be tested; and
(6) a test result of "not detected" for all tests required under paragraph (5) of this subsection is obtained and submitted for each test-eligible[eligible-aged] deer in the facility.
(e)[(g)] The department may decline to designate a facility as MQ under subsection (d)[(f)] of this section:
(1) if the department determines that a permittee has intentionally failed to test an eligible mortality; or
(2) upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation must:
(A)[(1)] be in writing and articulate the specific rationale supporting the recommendation; and
(B)[(2)] may include specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation.
(f)[(h)] Upon the successful completion of any additional testing requirements stipulated in the recommendation required by subsection (e)[(g)] of this section, the department may designate a facility MQ.
(g) The department may deny permit renewal for any facility for which substitute ante-mortem test results are utilized for more than 30 percent of the required postmortem test results, multiplied by five, pursuant to §65.92(d) of this title in more than two reporting years during the life of the permit.
(h) Deer required to be reported to the department under §65.605 of this title (relating to Holding Facility Standards and Care of Deer) are considered to be mortalities for the purposes of this division until lawfully recaptured. A deer that is not recaptured will be treated as a mortality that occurred within the facility from which the escape is required to be reported.
(i) Deer that according to department records should be present in a breeding facility but cannot be accounted for to the satisfaction of the department are considered to be mortalities for the purposes of this section.
§65.95. Movement of Breeder Deer.
(a) General. Except as otherwise provided in this division, a [TC 1 or TC 2] breeding facility may transfer breeder deer under a transfer permit that has been activated and approved by the department to:
(1) another breeding facility;
(2) an approved release site as provided in subsection (c)[paragraph (3) of this subsection];
(3) a DMP facility; or
(4) a registered nursing facility, provided:
(A) the deer are less than 120 days of age;
(B) the facility from which the deer are transferred is MQ at the time of transfer; and
(C) no deer from any other breeding facility are or have been present in the nursing facility during the reporting year in which the transfer occurs.
(D) A registered nursing facility is prohibited from accepting deer from more than one breeding facility in one reporting year.
(E) No person may possess deer older than 120 days of age in a nursing facility[to another person for nursing purposes].
[(b) Breeder Facilities.]
[(1) TC 1. Except as may be otherwise provided in this division, a breeding facility that is in compliance with the requirements in 65.94(a) of this title(relating to Breeding Facility Minimum Movement Qualification) is a TC 1 facility if:]
[(A) the breeding facility has "fifth-year" or "certified" status in the TAHC CWD Herd Certification Program; or]
[(B) the breeding facility has submitted one of the following:]
[(i) "not detected" post-mortem test results for at least 80 percent of the total number of eligible mortalities that occurred in the breeding facility over the previous five consecutive reporting years, so long as the total number of "not detected" post-mortem test results submitted during the previous five consecutive reporting years is equal to or greater than the following number: the sum of the eligible-aged population in the breeding facility at the end of each of the previous five consecutive reporting years, plus the sum of the eligible mortalities that occurred within the breeding facility for each of the previous five consecutive reporting years, multiplied by 3.6 percent; or]
[(ii) "not detected" ante-mortem test results for at least 50 percent of eligible-aged deer in the facility’s inventory as of the date the facility initiates the ante-mortem testing process. For the report year beginning April 1, 2016, a breeding facility will be construed to have temporarily complied with this item upon submission of "not detected" ante-mortem test results for at least 25 percent of eligible-aged deer in the facility as of the date the facility initiates the ante-mortem testing process; however, the breeding facility must submit the remaining ante-mortem tests results to achieve 50% testing by May 15, 2017.]
[(2) TC 2.]
[(A) A breeding facility is a TC 2 facility if:]
[(i) it is not a TC 1 facility; and]
[(ii) it is not a TC 3 facility.]
[(B) The testing requirements for a TC 2 facility are the minimum testing requirements established for MQ designation in §65.94(a)(1) of this title (relating to Breeding Facility Minimum Movement Qualification).]
[(3) TC 3.]
[(A) A TC 3 facility is any breeding facility registered in TWIMS that is under a TAHC hold order, quarantine, and/or herd plan and meets any of the following criteria:]
[(i) received an exposed deer within the previous five years;]
[(ii) transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility; or]
[(iii) possessed a deer that was in a CWD-positive facility within the previous five years.]
[(B) No deer from a TC 3 facility may be transferred or liberated unless expressly authorized in a TAHC herd plan and then only in accordance with the provisions of this division and the TAHC herd plan.]
[(C) A TC 3 breeding facility remains a TC 3 breeding facility until the TAHC hold order or quarantine in effect at the breeding facility has been lifted.]
[(D) A TC 3 breeding facility may not transfer a breeder deer for any purpose unless the deer has been tagged in one ear with a NUES tag or button-type RFID tag approved by the department.]
(b)[(c)] Release Sites; Release of Breeder Deer.
(1) [General.]
[(A)] An approved release site consists solely of the specific tract of land to which deer are released and the acreage is designated as a release site in TWIMS. A release site owner may modify the acreage registered as the release site to recognize changes in acreage (such as the removal of cross-fencing or the purchase of adjoining land), so long as the release site owner notifies the department of such modifications prior to the acreage modification. The release site requirements set forth in this division apply to the entire acreage modified under the provisions of this subparagraph.
(2)[(B)] Liberated breeder deer must have complete, unrestricted access to the entirety of the release site; provided, however, deer may be excluded from areas for safety reasons (such as airstrips) or for the purpose of protecting areas such as crops, orchards, ornamental plants, and lawns from depredation.
(3)[(C)] All release sites onto which breeder deer are liberated must be surrounded by a fence of at least seven feet in height that is capable of retaining deer at all times under reasonable and ordinary circumstances. The owner of the release site is responsible for ensuring that the fence and associated infrastructure retain deer under reasonable and ordinary circumstances.
[(D) The testing requirements of this subsection continue in effect until "not detected" test results have been submitted as required by this subsection. A release site that is not in compliance with the requirements of this subsection is ineligible to receive deer and must continue to submit test results until the testing requirements of this subsection are satisfied.]
(4)[(E)] No person may intentionally cause or allow any live deer to leave or escape from a release site onto which breeder deer have been liberated.
(5)[(F)] The owner of a [Class II or Class III] release site where deer from a facility subject to the provisions of §65.99 of this title (relating to) or positive deer have been released shall maintain a harvest log at the release site that complies with §65.93 of this title (relating to Harvest Log).
(6) No person may transfer a breeder deer to a release facility or cause or allow a breeder deer to be transferred to a release facility unless:
(A) an ante-mortem test on rectal or tonsil tissue collected from the deer within the eight months immediately preceding the release has been returned with test results of “not detected”; and
(B) the deer is at least six months of age at the time the test sample required by this subparagraph is collected.
(C) An ante-mortem test result of “not detected” submitted to satisfy the requirements of §65.92(d) of this title may be utilized a second time to satisfy the requirements of this paragraph.
(D) A facility from which deer are transferred in violation of this subparagraph becomes automatically NMQ and any further transfers are prohibited until the permittee has complied with the testing requirements of the department, based on an epidemiological assessment as specified in writing.
[(2) Class I Release Site. Except as provided in §65.98, a release site is a Class I release site and is not required to perform CWD testing if the release site:]
[(A) is not a Class II or Class III release site; and]
[(B) after August 15, 2016, the release site has received deer only from TC 1 facilities.]
[(3) Class II Release Site.]
[(A) A release site that is not a Class III release site and receives deer from a TC 2 breeding facility is a Class II release site.]
[(B) Beginning the first hunting year following the release of deer from any TC 2 breeding facility and continuing for each hunting year thereafter, the owner of a Class II release site must submit "not detected" post-mortem test results for the first deer harvested and each deer harvested thereafter at the release site; however, no release site owner is required to submit more than 15 "not detected" post-mortem test results in any hunting year.]
[(C) The requirements of subparagraph (B) cease as follows:]
[(i) for release sites that have submitted all test results required by this division, the requirements of subparagraph (B) cease on March 1, 2019;]
[(ii) for release sites that have not submitted all the test results required by this division, the requirements of subparagraph (B) shall cease upon submission of all required test results.]
(c)[(4)] Trace-out[Class III] Release Site.
(1)[(A)] A release site is a trace-out release site if[Class III release site if:]
(A)[(i)] it has[:]
(i)[(I)] received deer directly or indirectly from a positive breeding facility [from an originating facility that is a TC 3 facility; or]
[(II) received an exposed deer within the previous five years or has transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility]; and
(ii) it has not been released from a [TAHC] hold order or quarantine related to activity described in subparagraph A of this paragraph[clause (i) of this subparagraph].
(2)[(B)] The landowner of a trace-out release site[Class III release site] must submit post-mortem CWD test results for one of the following values, whichever represents the greatest number of deer tested:
(A)[(i)] 100 percent of all hunter-harvested deer; or
(B)[(ii)] one hunter-harvested deer per liberated deer released on the release site between the last day of lawful hunting on the release site in the previous hunting year and the last day of lawful hunting on the release site during the current hunting year; provided, however, this minimum harvest and testing provision may only be substituted as prescribed in a [TAHC] herd plan.
(3)[(C)] No breeder deer may be transferred to a trace-out release site[Class III release site] unless the deer has been tagged in one ear with a [NUES tag or] button-type RFID tag approved by the department.
§65.96. Movement of DMP Deer. This section applies to the movement of deer under a DMP.
[(1) Testing Requirements.]
[(A) There are no CWD testing requirements for a DMP facility that:]
[(i) does not receive breeder deer; or]
[(ii) receives breeder deer solely from [TC 1] deer breeding facilities. ]
[(B) Beginning the first hunting year after the release of deer from the following facilities, and continuing for each hunting year thereafter, the owner of the release site must submit "not detected" post-mortem test results for the first deer harvested and each deer harvested thereafter at the release site; however, no release site owner is required to submit more than 15 "not detected" post-mortem test results in any hunting year:]
[(i) deer from a DMP facility that receives breeder deer from a TC 2 deer breeding facility; or]
[(ii) deer from a DMP facility that receives deer trapped deer from a Class II release site.]
[(C) The requirements of subparagraph (B) cease as follows:]
[(i) for release sites that have submitted all test results required by this division, the requirements of subparagraph (B) cease on March 1, 2019;]
[(ii) for release sites that have not submitted all the test results required by this division, the requirements of subparagraph (B) shall cease upon submission of all required test results.]
(1)[(2)] The department will not authorize the transfer of deer to a DMP facility from a breeding facility subject to the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD) or trace-out release site[TC 3 breeding facility, a Class III release site, or from a release site or deer breeding facility] that is not in compliance with the requirements of this division.
(2) The department will not authorize the transfer of deer from a DMP facility to any location other than the release site specified in the permit.
§65.97. Testing and Movement of Deer Pursuant to a Triple T or TTP Permit.
(a) General.
(1) On the effective date of this paragraph the department will cease the issuance of Triple T permits for deer until further notice[Unless expressly provided otherwise in this section, the provisions of §65.102 of this title (relating to Disease Detection Requirements) cease effect upon the effective date of this section].
(2) The department will not issue a Triple T permit authorizing deer to be trapped at a:
(A) release site that has ever received breeder deer [within five years of the application for a Triple T permit];
(B) release site that has failed to fulfill the applicable testing requirements of this division;
(C) any site where a deer has been confirmed positive for CWD;
(D) any site where a deer has tested "suspect" for CWD; or
(E) any site under a [TAHC] hold order or quarantine.
(3) In addition to the reasons for denying a Triple T permit as provided in §65.107 of this title (relating to Permit Application and Processing) and §65.109 of this title (relating to Issuance of Permit)[listed in §65.103(c) of this title (relating to Trap, Transport, and Transplant Permit)], the department will not issue a Triple T permit if the department determines, based on epidemiological assessment and consultation with TAHC that to do so would create an unacceptable risk for the spread of CWD.
(4) All deer released under the provisions of this section must be tagged prior to release in one ear with a button-type RFID tag approved by the department, in addition to the marking required by §65.102 of this title (relating to Disease Detection Requirements). RFID tag information must be submitted to the department.
(5) Nothing in this section authorizes the take of deer except as authorized by applicable laws and regulations, including but not limited to laws and regulations regarding seasons, bag limits, and means and methods as provided in Subchapter A of this chapter (relating to Statewide Hunting Proclamation).
(6) Except for a permit issued for the removal of urban deer, a test result is not valid unless the sample was collected and tested after the Saturday closest to September 30 of the year for which activities of the permit are authorized.
(7) For permits issued for the removal of urban deer, test samples may be collected between April 1 and the time of application.
(b) Testing Requirements for Triple T Permit.
(1) The department will not issue a Triple T permit unless "not detected" post-mortem test results have been submitted for 15 test-eligible[eligible-aged] deer from the trap site.
(2) CWD testing is not required for deer trapped on any property if the deer are being moved to adjacent, contiguous tracts owned by the same person who owns the trap site property.
(c) Testing Requirements for TTP Permit.
(1) "Not detected" test results for at least 15 test-eligible[eligible-aged] deer from the trap site must be submitted.
(2) The landowner of a trace-out release site[Class III release site] must submit CWD test results for 100% of the deer harvested pursuant to a TTP permit, which may include the samples required under paragraph (1) of this subsection.
(3) Test results related to a TTP permit must be submitted to the department by the method prescribed by the department by the May 1 immediately following the completion of permit activities.
§65.98. Transition Provisions.
[(a) This division does not apply to an offense committed before the effective date of this division. An offense committed before the effective date of this division is governed by the regulations that existed on the date the offense was committed, including, but not limited to the following:]
[(1) Deer Breeder: published in the Texas Register September 4, 2015 (40 TexReg 5566); January 1, 2016 (41 TexReg 9); January 29, 2016 (41 TexReg 815);]
[(2) DMP: published in the Texas Register October 23, 2015 (40 TexReg 7305); February 12, 2016 (41 TexReg 1049); February 19, 2016 (41 TexReg 1250); and,]
[(3) Triple T/TTP: published in the Texas Register October 23, 2015 (40 TexReg 7307); January 1, 2016 (41 TexReg 9).]
[(b) A release site that as of August 15, 2016, is in compliance with the Interim Deer Breeder Rules shall be not subject to testing requirements of this division until deer are liberated or released onto the release site under the provisions of this division.]
[(c) A release site that becomes a Class II release site as a result of the receipt of deer on or after August 15, 2016 from a TC 2 breeding facility will be designated as a Class I release site if the release site is in compliance with all Class II requirements as provided in §65.95(c) of this title (relating to Movement of Breeder Deer) in that season; and]
[(1) all TC 2 breeding facilities that provided deer to the release site achieve TC 1 status by May 15, 2017, as provided in 65.95(b)(1) of this title (relating to Movement of Breeder Deer); or]
[(2) all breeder deer liberated to the release site after August 15, 2016 and prior to October 1, 2016:]
[(A) are harvested and CWD-tested during the 2016-2017 hunting year; and]
[(B) no additional deer are received from a TC 2 or TC 3 facility during the 2016-2017 hunting year.]
[(d)] A release site that was not in compliance with the applicable testing requirements of this division in effect between August 15, 2016 and the effective date of this this section[Interim Deer Breeder Rules] shall be:
(1) required to comply with the applicable provisions of this division regarding CWD testing with respect to release facilities[Class II or Class III sites for a period of three consecutive years beginning on the first day of lawful hunting for the 2016-2017 hunting year]; and
(2) ineligible to be a release site for breeder deer or deer transferred pursuant to a Triple T permit or DMP until the release site has complied with paragraph (1) of this subsection.
[(e) The department’s executive director shall develop a transition plan and issue appropriate guidance documents to facilitate an effective transition to this division from previously applicable regulations. The transition plan shall include, but is not limited to, provision addressing a mechanism for classifying facilities that have obtained "not detected" ante-mortem test results at a level that meets or exceeds that required in this division prior to the effective date of this division.]
§65.99. Special Provisions – Breeding Facilities Epidemiologically Connected to Deer Infected with CWD.
(a) Effectiveness.
(1) To the extent that any provision of this section conflicts with any provision of this division, the provisions of this section prevail.
(2) The provisions of Division 1 of this subchapter apply to any facility designated by the department as a Category A, Category B, or Tier 1 breeding facility subject to the provisions of this section.
(b) No deer from a facility subject to the provisions of this section may be transferred or liberated unless expressly authorized in a herd plan and then only in accordance with the provisions of this division and the herd plan.
(c) Deer transferred under the provisions of this paragraph must be tagged in one ear with a button-type RFID tag approved by the department
(d) Category A trace-out breeding facility.
(1) A Category A facility is a trace-out breeding facility:
(A) in which all trace deer are alive in the facility; or
(B) for which post-mortem test results of "not detected" have been returned for trace deer that have died and all other trace deer are alive and present in the facility.
(2) Immediately upon notification by the department of Category A status, a facility is automatically NMQ. Except as provided in paragraph (3) of this subsection, a permittee shall, upon notification by the department of Category A status:
(A) within seven days euthanize all trace deer in the breeding facility and submit test samples for each of those deer for post-mortem testing within one business day;
(B) inspect the facility daily for mortalities;
(C) immediately report all test-eligible mortalities that occur within the facility; and
(D) immediately collect test samples from all test-eligible mortalities that occur within the facility and submit the samples for post-mortem testing within one business day of collection.
(3) In lieu of the testing requirements prescribed in paragraph (2)(A) of this subsection, a permittee may request the development of a custom testing plan as provided in subsection (g) of this section; provided however, the permittee must comply with the requirements of paragraph (2)(B) — (D) of this subsection.
(4) The department in consultation with TAHC may decline to authorize a custom testing plan under subsection (g) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.
(5) The department will not restore MQ status unless CWD "not detected" test results are obtained for all required sample submissions and the permittee has complied with all applicable requirements of this subsection and this division.
(e) Category B trace-out breeding facility.
(1) A Category B facility is a trace-out breeding facility in which less than 100% of the trace deer that department records indicate were received by the facility are for whatever reason (including but not limited to transfer, release, or escape) available for testing.
(2) Immediately upon notification by the department of Category B status; a facility is automatically NMQ and the permittee shall:
(A) within seven days euthanize all trace deer in the breeding facility and submit test samples for each of those deer for post-mortem testing within one business day;
(B) inspect the facility daily for mortalities;
(C) immediately report all test-eligible mortalities that occur within the facility;
(D) immediately collect test samples from all test-eligible mortalities that occur within the facility and submit the samples for post-mortem testing within one business day of collection; and
(E) conduct ante-mortem testing of all test-eligible deer in the facility as specified in the following:
(i) for a facility for which the date of last known exposure is within the immediately preceding 18 months:
(I) submit rectal or tonsil biopsy samples collected on or after April 1, 2021; and
(II) submit tonsil biopsy samples collected no earlier than 24 months from the date of last known exposure;
(ii) for a facility for which the date of last known exposure is not within the immediately preceding 18 months and not at a time prior to the immediately preceding 36 months: collect and submit tonsil biopsy samples no earlier than 24 months from the date of last known exposure; and
(iii) for a facility for which the date of last known exposure occurred at a time after the immediately preceding 36 months: collect and submit rectal or tonsil biopsy samples collected no earlier than 36 months from the date of last known exposure.
(3) In lieu of the testing requirements prescribed by paragraph (2)(A) and (2)(E) of this subsection, a permittee may request the development of a custom testing plan as provided in subsection (g) of this section; provided, however, the permittee must comply with subparagraphs (B) — (D) of this paragraph.
(4) Samples required by paragraph (2)(E) of this subsection shall be submitted no later than 45 days after the applicable last known exposure period as determined by the department.
(5) The department in consultation with TAHC may decline to authorize a custom testing plan under subsection (g) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.
(6) The department will not restore MQ status unless CWD "not detected" test results are obtained for all required sample submissions and the permittee has complied with all applicable requirements of this subsection and this division.
(f) Tier 1 facility.
(1) Upon notification by the department of Tier 1 status, a facility is automatically NMQ and the permittee shall:
(A) inspect the facility daily for mortalities;
(B) immediately report all test-eligible deer mortalities that occur within the facility; and
(C) immediately collect test samples from all test-eligible deer mortalities that occur within the facility and submit for post-mortem testing within one business day of collection.
(2) A permittee may request the development of a custom testing plan as provided in subsection (g) of this section; provided, however, the permittee must comply with the provisions of paragraph (1)(A) — (C) of this subsection.
(3) The department will not restore MQ status unless the permittee has complied with all applicable requirements of this subsection and this division, and any one of the following:
(A) post-mortem results of "not detected" have been submitted for every exposed deer received from a trace facility; or
(B) the department has restored MQ status to all trace facilities from which deer were received; or
(C) the permittee has conducted ante-mortem testing as specified in subsection (d)(2)(E) of this section; or
(D) the permittee has conducted testing as specified in compliance with the provisions of a custom testing plan under the provisions of subsection (f) of this section to the satisfaction of the department and TAHC.
(4) The department in consultation with TAHC may decline to authorize a custom testing plan under subsection (f) of this section if an epidemiological assessment determines that a custom testing plan is inappropriate.
(g) Custom Testing Plan. Within seven days of being notified by the department that a breeding facility has been designated a Category A, Category B, or Tier 1 facility, a permittee may, in lieu of meeting the applicable testing requirements of subsections (d) — (f) of this section, request the development of a custom testing plan by the department in consultation with TAHC based upon an epidemiological assessment conducted by the department and TAHC. A custom testing plan under this subsection is not valid unless it has been approved by the department and TAHC.
(1) The department shall temporarily suspend the applicable testing provisions of subsections (d)(2)(A) and (e)(2)(A) and (E) of this section while the epidemiological assessment and custom testing plan development under this subsection take place.
(2) Upon the development of a custom testing plan under the provisions of this subsection, the department shall provide the permittee with a copy of the custom testing plan and the permittee shall, within seven days:
(A) agree in writing to comply with the provisions of the custom testing plan; or
(B) notify the department in writing that the permittee declines to participate in the custom testing plan.
(C) If a permittee chooses to decline participation in a custom testing plan under this subsection, the provisions of subsections (d)(2)(A) and (e)(2)(A) and (E) of this section take effect as of the date of the notification required by subparagraph (B) of this paragraph and all time-dependent calculations of those subsections begin.
(D) If a permittee agrees in writing to comply with the provisions of a custom testing plan under this subsection, the custom testing plan replaces the testing provisions of subsections (d)(2)(A) and (e)(2)(A) and (E) of this section.
(3) A breeding facility designated by the department as Category A, Category B, or Tier 1 is NMQ as of the date of such notification and remains NMQ until the provisions of the custom testing plan under this subsection have been satisfied.
(4) If for any reason the permittee does not comply with the provisions of a custom testing plan under this subsection, the provisions of subsections (d) — (f) of this section resume applicability.
(5) The terms of a custom testing plan under this subsection are non-negotiable and final.
(h) Nursing facilities.
(1) Notwithstanding NMQ status, deer less than 120 days of age in any Category A, Category B, and or Tier 1 facility may be transferred to a registered nursing facility, provided:
(A) the facility from which the deer are transferred was MQ at the time the facility was designated Category A, Category B, or Tier 1; and
(B) no deer from any other breeding facility are or have been present in the nursing facility during the current reporting year.
(2) A registered nursing facility is prohibited from accepting deer from more than one breeding facility in one reporting year.
(3) No person may possess deer older than 120 days of age in a nursing facility. §65.100. Violations and Penalties.
(a) A person who violates a provision of this division or a condition of a deer breeder’s permit, DMP, Triple T permit, TTP permit, herd plan, or custom testing plan commits an offense and is subject to the penalties prescribed by the applicable provisions of the Parks and Wildlife Code.
(b) A person who possesses or receives white-tailed deer or mule deer under the provisions of this division and/or Subchapters C, D, or T of this chapter is subject to the provisions of TAHC regulations at 4 TAC Chapter 40 (relating to Chronic Wasting Disease) that are applicable to white-tailed or mule deer.
(c) A person who fails to comply with a provision of this division or a condition of a deer’s breeder permit, DMP, Triple T permit, TTP permit, herd plan, or custom testing plan may be prohibited by the department from future permit eligibility or issuance.
Special Work Session Agenda Item No. 7
Exhibit B
POSSESSION OF WILDLIFE RESOURCES; PROOF OF SEX
§65.10. Possession of Wildlife Resources.
(a) – (d) (No change.)
(e) Proof of sex for deer and antelope must remain with the carcass until tagging requirements cease.
(1) Proof of sex for deer consists of:
(A) buck: the head, with antlers still attached; and
(B) female antlerless (“doe”):
(i) the head; or
(ii) the mammary organ (udder) or vulva; and
(iii) tail.
(C) male antlerless (“nubbin” or “button” buck): the head.
(f) – (l) (No change.)