Proposed Amendments to Rules Governing Chronic Wasting Disease Management

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DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §65.99, amendments to §§65.80-65.83, 65.88, and 65.90-65.98, and new §65.99 and §65.100, concerning Disease Detection and Response. The proposed rules would impose new testing requirements for deer breeding facilities and incorporate the provisions of an emergency rule adopted on June 22, 2021 (46 TexReg 3991) in response to multiple detections of chronic wasting disease (CWD) earlier this year in additional deer breeding facilities. The intent of the proposed rules is to reduce the probability of CWD being spread from facilities where it does or might exist and to increase the probability of detecting and containing CWD where it does exist.

        CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, red deer, sika, and others (susceptible species). CWD is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep) and bovine spongiform encephalopathy (BSE, found in cattle and commonly known as “Mad Cow Disease”), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. CWD is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination).

        White-tailed deer and mule deer are indigenous species authorized to be regulated by the department under the Parks and Wildlife Code. Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for better wildlife management (popularly referred to as “Triple T” permits). Under Parks and Wildlife Code, Chapter 43, Subchapter L, the department regulates the possession of captive-raised deer for breeding purposes. 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. Under Parks and Wildlife Code, Chapter 43, Subchapters R and R-1, the department may issue a Deer Management Permit (DMP) allowing the temporary possession of free-ranging white-tailed or mule deer within an enclosure on property surrounded by a fence capable of retaining white-tailed deer (under reasonable and ordinary circumstances) for propagation purposes. At the current time, there are no rules authorizing DMP activities for mule deer.

        The department, along with the Texas Animal Health Commission (TAHC), has been engaged in an ongoing battle against CWD in Texas since 2002, including in response to repeated detections within deer breeding facilities. Since 2002, more than 123,000 “not detected” post-mortem CWD test results have been obtained from free-ranging (i.e., not breeder) deer in Texas, and deer breeders have submitted approximately 47,000  “not detected” post-mortem test results as well. The recent detections of CWD in seven additional breeding facilities create an unprecedented situation because they are at a scale that is orders of magnitude greater than earlier instances of detection encountered by the department.

        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 currently no scientific evidence to indicate that CWD is transmissible to humans; however, both the CDC and the World Health Organization strongly recommend testing animals from CWD Zones prior to consumption, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to cervids. Moreover, a high prevalence of the disease correlates with deer population decline in at least one free-ranging population in the United States, 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 captive 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.

        The department has engaged in frequent rulemaking over the years to address both the general threat posed by CWD and the repeated detection of CWD in deer breeding facilities. In 2005, the department adopted rules (30 TexReg 3595) that 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. In 2012, based on recommendations from the department’s CWD Task Force (an ad hoc group of deer management professionals, landowners, veterinarians, scientists, and deer breeders), the department adopted rules (37 TexReg 10231) to implement a CWD containment strategy in response to the detection of CWD in free-ranging mule deer located in the Hueco Mountains, the first detection of CWD in Texas. In 2015, the department discovered CWD in a deer breeding facility in Medina County and adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, followed by rules (41 TexReg 815) intended to function through the 2015-2016 hunting season. Working closely with TAHC and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department intensively utilized input from stakeholders and interested parties to develop and adopt comprehensive CWD management rules in 2016 (41 TexReg 5726), including provisions for live testing (“ante-mortem”) of deer for CWD. Since 2002, the department has made a continuous, concerted effort to involve the regulated community and stakeholders in the process of developing appropriate CWD response, management, and containment strategies, including input from the Breeder User Group (an ad hoc group of deer breeders), the CWD Task Force, the Private Lands Advisory Committee (an advisory group of private landowners from various ecological regions of the state), and the White-tailed Deer and Mule Deer Advisory Committees (advisory groups of landowners, hunters, wildlife managers, and other stakeholders).

        The department has also engaged in several rulemakings (both emergency and via the normal rulemaking process) to create containment and surveillance zones in response to CWD detections in both free-ranging and captive deer in various parts of the state. Those rules are contained in Division 1 of Chapter 65, Subchapter B.

        The current rules in Division 2 of Chapter 65, Subchapter B have been referred to commonly as the “comprehensive” rules. One of the changes made in this proposed rulemaking would be to incorporate the word “comprehensive” in the title of the division for ease of reference and reduction of confusion. The references to “current rules” in this preamble do not include the emergency rule adopted on June 22, 2021.

        The current rules can be generally described as functioning together to impose testing standards necessary to provide a statistically representative sampling effort within deer breeding facilities for purposes of minimally effective surveillance for CWD. The current rules set forth specific CWD testing requirements for deer breeders, which must be satisfied in order to transfer deer to other deer breeders or for purposes of release. One of the most effective approaches to managing infectious diseases and arresting the spread of a disease is to segregate populations of unknown disease risk, suspicious individuals, and suspicious 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. The current rules implement such an approach, albeit at a level that the department unfortunately has concluded, based on the continued spread of CWD, is ineffective in sufficiently reducing the risk of transmission of CWD between breeder facilities or from breeding facilites to release sites. Under current rule, breeding facilities are classified into two broad categories: those facilities authorized to transfer deer (MQ facilities) and those facilities not authorized to transfer deer (NMQ facilities). MQ facilities are further classified according to the relative level of risk for the presence of CWD within each facility, based on the provenance of the deer within each facility and the results of continuous annual testing. Breeding facilities are classified as Transfer Category 1 (TC 1), Transfer Category 2 (TC 2), or Transfer Category 3 (TC 3). Similarly, release sites are classified as a Class I, Class II, or Class III. The proposed amendments act collectively to eliminate the concept of the “transfer category” and condition the movement of breeder deer solely on the movement status of deer breeding facilities. The former Transfer Category 3 facilities are those facilities in which CWD has been detected and are under TAHC quarantines, and those facilities that are under TAHC hold orders and have either received an exposed deer within the previous five years, transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility, or possessed a deer that was in a CWD-positive facility within the previous five years. Surveillance at those facilities would be governed under the proposed amended rules and under proposed new §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD.” In general, the proposed amended and new rules are intended to address the various epidemiological implications resulting from the movement of deer into and out of positive breeding facilities.

        To achieve or maintain Movement Qualified (MQ) status under current rules, a facility must have achieved “fifth-year” or “certified” status in the TAHC CWD Herd Certification Program, or provide valid test results of “not detected” for at least 80 percent of the total number of eligible mortalities that occurred in the breeding facility in each reporting year. The department recognizes that if a breeding facility has an unusually low number of eligible mortalities, the requirement to submit post-mortem tests for 80 percent of all eligible mortalities during the year could result in a lower number of post-mortem tests than necessary to achieve adequate CWD surveillance. Therefore, a minimum number of post-mortem tests to be submitted each report year is required. That number is calculated as the sum of the eligible-aged population in the breeding facility at the end of each reporting year, plus the sum of the eligible mortalities that have occurred within the breeding facility during the previous reporting year, multiplied by 3.6 percent. To develop this number, the department considered, based on mortality data required to be reported by permittees, that the average natural mortality in a deer breeding facility was 4.5 percent of the eligible-aged deer population in the breeding facility each year. Therefore, if a deer breeding facility with an average number of natural mortalities among eligible-aged deer tested 80% of those mortalities, the breeding facility would test 3.6 percent (i.e., 80% of 4.5%) of the eligible-aged population each year. This formula was developed with stakeholder input and was intended to create the least burdensome regulatory footprint possible.

        Under current rule, when CWD is detected in a facility (a “positive facility”), that facility is immediately prohibited from transferring deer and the department and TAHC staff immediately begin epidemiological investigations to determine the extent and significance of possible disease transmission. Epidemiologically connected facilities, both trace in and trace out, identified by the department and TAHC are subject to quarantines (for positive facilities) and hold orders (for trace facilities) issued by TAHC.  Current rule prohibits the transfer of deer to or from a facility if the transfer is prohibited by a TAHC herd plan associated with a quarantine or hold order.

        With respect to the most recent detections in 2021 (necessitating the emergency action currently in effect), department records indicate that within the last five years, the seven positive facilities referenced earlier transferred a total of 2,525 deer to 138 deer breeding facilities and 118 release sites located in a total of 92 counties. These breeding facilities and release sites are therefore directly connected to at least one of the positive facilities and by current rule were designated “not movement qualified” (NMQ), which prohibits the transfer of deer. As a result of the ongoing epidemiological investigation and pursuant to existing regulations, 114 of the 138 directly connected breeding facilities have regained movement qualified status if otherwise eligible, leaving 25 facilities of epidemiological concern. An additional 214 deer breeding facilities received deer from one or more of those 72 directly connected breeding facilities; these facilities are indirectly connected to the positive facilities and are or were of epidemiological concern because it is possible that within the last five years any or all of them could have received CWD-infected deer. The five-year window is important because (based on the literature) it encompasses the time period from possible exposure to CWD, through the incubation period, to the time at which the disease can be transmitted to another animal or the environment. As a result of the ongoing epidemiological investigation and pursuant to existing emergency regulations, 185 of the 214 indirectly connected breeding facilites have regained movement qualified status if otherwise eligible, leaving 29 indirectly connected indirectly connected facilities of epidemiological concern.

        The current comprehensive rules do not address disease response with respect to indirectly connected facilities (facilities that receive deer that were in the same facility with an exposed deer prior to being transferred to another facility). As noted previously, the recent discovery of CWD in seven more breeding facilities and the resultant extended network of epidemiological connectivity necessitated the adoption of an emergency rule on June 22, 2021 (46 TexReg 3993), which addresses the situation by imposing requirements for disease testing and movement of breeder deer to and from indirectly connected facilities. In addition, the emergency rule requires ante-mortem testing of all age-eligible deer prior to transfer to a release site. The department and TAHC have continued to conduct epidemiological investigations and this rulemaking is intended to implement the pertinent provisions of the emergency rule by way of the normal administrative process, including a minimum 30-day public comment opportunity.

        The proposed 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 rules implement a more rigorous testing protocol within certain deer breeding facilities and at release sites than was previously required.  The proposed rules would provide a pathway for all deer breeders (with the exception of CWD-positive facilities) to continue to move and release breeder deer. The proposed rules in this rulemaking continue the existing extensive cooperation between the department and TAHC and the continued involvement of various stakeholder groups and interested parties.

        The department notes that several types of alterations are made repeatedly in the proposed amendments. Throughout Subchapter B there are references and provisions relating to “transfer category” and release-site “classes.” Those terms reflect a regulatory structure that is no longer necessary because the current rules have been in place long enough that the distinctions they represent no longer exist. The proposed amendments eliminate references to and provisions regarding those distinctions throughout the subchapter. The only distinction with respect to risk management at this time is MQ versus NMQ.

        Similarly, the proposed amendments and new section replace references to TAHC herd plans with the term “herd plan” in order to reflect the interagency cooperation between the department and TAHC. Those changes are also made throughout the proposed rules.

        In general, the proposed amendments to sections within Division 1 comport the contents of that division with proposed amendments to Division 2. The sections within Division 1 provide a regulatory structure for the creation of CWD management zones within which special provisions apply to the movement of live deer under department permits and deer carcasses following harvest by hunters.

        The proposed amendment to §65.80, concerning Definitions, would eliminate definitions for terms that are no longer used in the rules and add a definition of “herd plan” to comport the division with changes being proposed to Division 2.

        The proposed amendment to §65.88, concerning Deer Carcass Movement Restrictions, inserts clarifying language in subsection (b)(4) to emphasize that skull plates must be cleaned of internal soft tissue.

        The terms “eligible mortality” and “adult deer” are being removed because those terms are artifacts of previous iterations of the rules and the current zone rules no longer employ them, as all CWD testing requirements are now contained in Division 2. The proposed amendment would define “herd plan” as “a set of requirements for disease testing and management developed by the department and TAHC for a specific facility.” Elsewhere in this rulemaking, the department proposes to eliminate specific references to TAHC herd plans and replace them with generic references to herd plans to reflect the fact that herd plans are jointly developed by the department and TAHC.

        As noted earlier in this preamble, the proposed amendments would remove references to the term “transfer category,” “release category,” and various provisions associated with those terms throughout the division. The proposed amendments to Division 2 would implement an improved methodology for determining the risk of deer breeding facilities with respect to the spread of CWD by conditioning movement restrictions solely on MQ status, which makes the concepts of transfer category and release site class unnecessary. The proposed amendment also references the provisions of proposed §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, where necessary, to preserve current limitations on deer movement to and from deer breeding facilities determined to present the highest risk of spreading CWD (currently referred to as “TC 3” facilities). The proposed amendments also make nonsubstantive housekeeping-type changes in the interest of clarity and organization.

        The proposed amendments and new section within Division 2 would incorporate the provisions of the current emergency rule in effect and comport the existing provisions of the division accordingly, with exceptions as noted.

        The proposed amendments to §65.90, concerning Definitions, would eliminate definitions for “eligible-aged deer” “eligible mortality,” “Interim Breeder Rules,” “NUES tag,” “originating facility,” “status,” “TAHC Herd Certification Program,” and “TAHC Herd Plan,” add definitions for “exposure,” “herd plan,” “inconclusive,” “insufficient follicles,” “last known exposure,” “release,” “test-eligible,” “Tier 1 facility,” “trace deer,” and “trace-out breeding facility,” and modify the definitions for “confirmed,”  “CWD-positive facility,” “exposed deer,” and “reconciled herd.”

        The definition of “eligible-aged deer” is being eliminated because the proposed amendment would replace it with a new definition for “test-eligible.”

        The definition of “eligible mortality” is being eliminated because the term is no longer used in the rules.

        The definition of “Interim Breeder Rules” is being eliminated because it existed only to provide a point of reference for the transition from a previous set of rules intended to contain and manage CWD in breeding facilities to the current rules implementing a comprehensive CWD management plan.

        The definition of “NUES tag” is being eliminated because the retention and visibility of NUES tags is suboptimal.

        The definition of “originating facility” is being eliminated because the proposed rules would eliminate the current structure based on transfer and release status assigned to individual breeding and release facilities based on their comparative risk of spreading CWD; thus, the term is no longer used and is therefore unnecessary.

        The definition of “status” is being eliminated because the term no longer has a specific meaning in the context of transfer and release facility designations.

        The definitions of “TAHC CWD Herd Certification Program” and “TAHC herd plan” are being eliminated because the proposed rules acknowledge the cooperative nature of interagency planning and resource management activities between the department and the TAHC and the reality that the repeated emergence of CWD in deer breeding facilities has created operational stressors necessitating a shared burden in the development of plans for individual breeding facilities.

        The proposed amendment would define “exposure” as “the period of time that has elapsed following the introduction of an exposed deer to a breeding facility.” Because individual deer that have been exposed to CWD can incubate the disease at different rates, it is epidemiologically critical to establish a timeline to determine the highest likelihood of early detection of the disease if it is present.

        The proposed amendment would define “inconclusive” as “a test result that is neither “positive” nor “not detected” on the basis of clinical deficiency.” Current rules allow for the restoration of MQ status in certain situations on the basis of ante-mortem testing of an entire captive herd. Due to a number of factors, not all test samples yield definitive results as to the presence or absence of CWD. The department acknowledges that fact; therefore, the proposed rules would allow a certain percentage of test results to be inconclusive without jeopardizing the adequacy of surveillance. The most common cause of inconclusive test results is due to the lack of enough specific tissue in a sample to contain enough lymphoid follicles to produce a reliable test result, referred to as a result of “insufficient follicles.” Therefore, the proposed amendment would include a definition of “insufficient follicles” for clarity’s sake. The term would be defined as “a test result indicating that a tonsil or rectal biopsy sample contained an insufficient number of lymphoid follicles to produce a valid test result.”

        The proposed amendment would define “last known exposure” as “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.” The definition is necessary because the CWD testing requirements imposed by proposed new §65.99 are predicated upon the length of time since an exposed deer was in a facility.

        The proposed amendment would define “release” as “the act of liberating a deer from captivity. For the purposes of this division the terms “release” and “liberate” are synonymous.” The definition is necessary because Parks and Wildlife Code, Chapter 43, Subchapter L uses the terms “release” and “liberation” interchangeably and the department intends to provide a definitive affirmation that the two terms are indeed synonymous.

        The proposed amendment would define “test-eligible” as “a deer at least 16 months of age prior to the effective date of the rules and following the effective date of the rules, a deer at least 12 months of age.” The proposed rules lower the minimum age at which deer may be tested; however, that change will take place during the reporting year. The definition is necessary to make that clear.

        The proposed amendment would define “Tier 1 facility” as “a breeding facility that has received an exposed deer that was in a trace-out breeding facility.” The definition is necessary to acknowledge the epidemiological importance of exposed deer that were received indirectly via a Category A or Category B trace-out breeding facility.

        The proposed amendment would define “trace deer” as “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.” The definition is necessary because proposed new §65.99 would create testing requirements for breeding facilities that have received deer epidemiologically connected to a positive facility.

        The proposed amendment would define “trace-out breeding facility” as “a breeding facility that has received an exposed deer that was in a CWD-positive deer breeding facility.”

The definition is necessary because new §65.99 would create testing requirements for breeding facilities that have received deer directly from a positive facility.

        The proposed amendment would alter the definition of “confirmed” to include the Texas A&M Veterinary Medical Diagnostic Laboratory as a testing authority.

        The proposed amendment would alter the definition of “CWD-positive facility” to include the term “positive facility” in order to reduce the repetition of an unwieldy term throughout the rules.

        The proposed amendment would replace the definition of “exposed deer” with a more nuanced definition that reflects the emergency rule currently in effect and proposed for incorporation into Division 2 by this rulemaking. The proposed new definition is based on the importance of determining the extent to which any given deer breeding facility is epidemiologically connected to facilities where CWD is known to exist, which in turn determines the CWD testing requirements necessary to both determine the epidemiological status of the facility and the nature and extent of CWD testing necessary to allow the resumption of transfers by the facility. The current definition states that an exposed deer is a deer that is in a CWD-positive facility or was in a CWD-positive facility within five years prior to the discovery of CWD in that facility. The proposed new definition would define an exposed deer as a deer meeting any of three criteria: the deer is or was in a breeding facility after the date that the facility held a CWD-positive deer,  the deer is or was in a facility within five years preceding the discovery of a CWD-positive deer that was in the same facility, or the deer is in a facility as of a determination that either of the first two conditions exists with respect to a given facility. The definition is based on the epidemiological need to characterize the potential of any given breeder deer to have been in any facility where the possibility of contracting CWD could have existed.

        The proposed amendment to §65.91, concerning General Provisions, would eliminate current subsections (e) and (f) because they relate to the transfer categories and release site classes of the current rule as discussed earlier in this preamble. The proposed amendment would also conform language regarding herd plans as discussed previously, and make nonsubstantive housekeeping-type changes to standardize terminology (i.e., replacing phrases such as “introduce into or remove from” with “transfer,” which means the same thing.

        The proposed amendment to §65.91 would alter current subsection (g) to include exceptions for scientific research.

        The proposed amendment to §65.91 would alter current subsection (h) to include “reports” in the list of various communications with the department that are required to be made via the department’s online system for deer breeder permit administration, which is necessary for the sake of thoroughness in describing the types of documentation affected by the rules.

        The proposed amendment to §65.91 would add new subsection (f), which is being relocated from current §65.94(e) because it is generally applicable to all breeding facilities, to provide upon the determination that a facility has received a CWD “suspect” test result, that all trace facilities that have been in possession of deer that was present within the CWD suspect facility within the previous five years shall be NMQ until it is determined that the facility is not epidemiologically linked to the CWD suspect deer or the CWD “suspect” test result is not confirmed positive.  The intent of the proposed new subsection is to prohibit the transfer of breeder deer from trace facilities to another facility from the time when the initial CWD “suspect” test result is received and the result is confirmed.

        The proposed amendment to §65.92, concerning CWD Testing, would consist of several substantive and nonsubstantive changes. Current rules require tissue samples for ante-mortem testing to be collected within six months of submission from deer at least 16 months of age that have not been the source of a “not detected” test within the previous 24 months. The proposed amendment to subsection (b) would change that standard by requiring samples to be collected within eight months of submission from a deer at least 12 months of age that has not been the source of a “not detected” test result within the previous 12 months. Both the current rules and the rules as proposed reflect the agency’s strategy to establish some sort of general surveillance of captive deer populations. Because other provisions of this rulemaking would increase the minimum level of ante-mortem testing and require the testing of all mortalities occurring within breeding facilities, as well as the ante-mortem testing of all breeder deer prior to release, the department has determined that it is possible to allow test results from younger deer, increase the frequency with which deer may be tested, and increase the interval between sample collection and sample submission.  In addition, the proposed change to subsection (b) includes references to other provisions that create exceptions allowing for the testing of deer that had been the source of a “not detected” test result with the previous 12 months.

        Current subsection (c) provides that a post-mortem test is not valid unless performed on the obex or medial retropharyngeal lymph node (RLN). The proposed amendment would require the submission of the obex and the RLN. CWD in white-tailed deer and mule deer is typically detected in the RLN sooner than in the obex andthe department therefore reasons that requiring the submission of the RLN in addition to the obex will result in earlier detection of CWD positive deer and increase the efficacy of post-mortem CWD testing. In addition, by requiring the submission of both tissues, the possibility of wasted test effort is reduced. For example, if an obex from a deer yields inconclusive post-mortem testing results, an RLN from the same animal may not.

         The proposed amendment to subsection (d) and proposed new subsection (e) would establish new standards regarding the use of ante-mortem tests to substitute for inadequate post-mortem testing and provide for a transition from the current rules to the amended rules (if adopted). As described earlier in this preamble, the department determines any given breeding facility’s MQ status on the basis of a series of calculations intended to provide assurance that the level of post-mortem CWD-testing in a breeding facility is sufficient to monitor for the presence of CWD in the facility. If a facility is unable to provide sufficient post-mortem test results to be designated MQ on that basis alone, the current rules allow ante-mortem testing to be utilized to make up for the inadequate post-mortem surveillance; however, because post-mortem tests are of extremely high epidemiological value, a higher number of ante-mortem substitution tests are required in order to provide the same level of confidence that CWD can be detected. The proposed amendments would replace the testing rate in the current rules with a testing rate developed by the Center for Epidemiology and Animal Health (CEAH), which is an organization within the Animal Plant Health Inspection Service operated under the United States Department of Agriculture. Because ante-mortem substitution testing is a method of compensating for the lack of sufficient and more-desirable post-mortem testing and is calculated for each reporting year, the regulations must stipulate specific timeframes for the collection and submission of the samples in order to make substitution testing meaningful. In other words, MQ status in such situations, because it is dependent upon the herd collectively (rather than individual post-mortem samples) must be reflective of the herd over time within each reporting year. Therefore, the proposed subsection would stipulate that all provisions other than paragraphs (3) and (4), if adopted, would take effect April 1, 2022, which is the beginning of the next reporting year. Paragraphs (3) and (4) would take effect 20 days after the notice of adoption is filed with the Secretary of State. Proposed subsection (d)(1) would require ante-mortem test samples to be collected within eight months of the end of the reporting year to match the eight-month submission window created in the proposed amendment to subsection (b). Additionally, and for the same reasons, proposed new subsection (e) would accommodate the transition from the current rate at which ante-mortem test results may be substituted for post-mortem test results (3:1) to the proposed new ratio (5:1) by allowing the 3:1 substitution ratio to remain until the end of the current permit year.

        Proposed subsection (d)(2) would provide that the number of ante-mortem results could not exceed 30 percent of the total number of required post-mortem results (multiplied by five, to reflect the new ratio of substitution imposed by the proposed amendment) in more than two reporting years. A post-mortem test conducted quickly after the death of a deer is the gold standard for CWD testing efficacy. Also (and described in the discussion of the proposed amendment to §65.94), the proposed rules would require deer breeders to test all mortalities instead of the current minimum of 80 percent. Because the department acknowledges the reality that it may not always be possible to locate a mortality and extract a sample that will be valid, both the current and proposed rules allow ante-mortem tests to be substituted for a portion of the required post-mortem test results. Because ante-mortem tests are less reliable, however, the department believes that it would not be prudent to allow them to be substituted for post-mortem test results at either a high percentage or on a repeated basis. Therefore, the proposed rules provide for what the department has determined, based on what is known about the incubation period and transmissibility of CWD, as well as the efficacy of ante-mortem testing compared to post-mortem testing, is a reasonable substitution standard and a limit on how frequently that standard may be exceeded. Similarly, the department considers that there will be circumstances in which a deer breeder may possess enough deer to make it possible to achieve MQ status, but is unable to meet the requirements of the rules because not enough time has elapsed since previous testing efforts on specific deer. Therefore, proposed subsection (d)(3) would allow test results from deer that were tested within the previous 12 months to be submitted, provided all test-eligible deer within the facility have been tested prior to the testing of deer that were tested within the previous 12 months. As explained above, because other provisions of this rulemaking would increase the minimum level of ante-mortem testing and require the testing of all mortalities occurring within breeding facilities, as well as the ante-mortem testing of all breeder deer prior to release, proposed subsection (d)(3) would allow test results from deer six months of age or older provided all test-eligible deer in the facility have been tested prior to the testing prior to the testing of any deer that is six months of age or older but younger than 12 months. Proposed subsection (d)(4) would establish a limit of 10 percent on the number of “inconclusive” test results that could be submitted to satisfy the provisions of §65.94(d), excluding facilities that test fewer than ten deer. The provision in question pertains to a small subpopulation of NMQ breeding facilities that although unable to meet the testing requirements of §65.94(a), are in compliance with inventory and inspection requirements, haven’t received exposed deer, and don’t contain enough deer to meet ante-mortem substitution requirements. Current rules allow such facilities to be designated MQ following two “whole herd” rounds of ante-mortem tests 12 months apart, provided the tests are begun within 12 months of being designated NMQ.  It is not uncommon for test results to be inconclusive, which can happen for a variety of reasons; however, the department has determined that when the number of “inconclusive” results rises above 10 percent, confidence that the detection of CWD will be detected if it exists erodes significantly. Therefore, the department has determined that it is appropriate to limit the number of “inconclusive” test results that can be submitted for purposes of MQ designation, particularly in view of the fact that the facilities in question are unable to meet the testing requirements of §65.94(a). Proposed subsection (d)(5) would clarify that permittees are required to test 100 percent of mortalities that occur within a facility and that no provision of the rules is to be construed to create an exception to that requirement.  The proposed amendment to §65.92 would alter current subsection (e) and add new subsections (g) and (h) to make it abundantly clear that test results are tied to the breeding facility in which the samples are taken, are valid only if the deer from which the sample was taken is still in the facility, and cannot be used more than once except as specifically provided by the division. The department seeks to avoid any misunderstandings or confusion regarding the utilization of test results. The purpose of the testing requirements of the division is to provide a representative sampling frame that the department can use for determination of MQ status. An ante-mortem test result is a snapshot in time at the breeding facility where the deer resides and has an epidemiological value that is limited by a variety of factors, including how recently the test was performed. Allowing multiple breeders to re-utilize the same test results would mean that the results are no longer a statistically valid representation of the population of a single facility, meaning the surveillance value of the tests is compromised. Similarly, a test result cannot be used more than once for the same reason (with the sole exception of allowing sufficiently recent ante-mortem test results used for another purpose to be used to meet the ante-mortem testing requirements for release as provided in the proposed amendment to §65.95). Therefore, the proposed rules would explicitly state those conditions.

        Finally, the proposed amendment would alter the time periods within which permittees must report and submit samples for post-mortem testing. The current rules stipulate that mortalities must be reported within 14 days of detection; the rules also require samples from mortalities to be submitted within 14 days of collection. As has been noted at various points in this discussion, time is critical with respect to CWD testing. The department has determined that the efficacy of post-mortem testing would be significantly increased by reducing the timeframes for reporting, collection, and submission of post-mortem samples. Previous rules allowed samples to be submitted at any time within the reporting year; rules promulgated earlier this year imposed a 14-day requirement. The department concludes that imposing a seven-day requirement will result in improved and more accurate data collection as well as enhancing the likelihood of earlier detection and subsequent epidemiological investigation.

        The proposed amendment would eliminate current subsection (g), which is no longer necessary if all breeder deer are required to be ante-mortem tested prior to release as provided in the proposed amendment to §65.95.

        The proposed amendment to §65.93, concerning Harvest Log, would eliminate references to the NUES tag for reasons explained in the discussion of the proposed amendment to §65.90, concerning Definitions.

        The proposed amendment to §65.94, concerning Breeding Facility Minimum Movement Qualification, would require permittees to post-mortem test all mortalities within a breeding facility to achieve MQ status. As noted earlier in this preamble, the calculations for MQ status under the current rules involve a benchmark requirement of “not detected” post-mortem test results for 80 percent of eligible mortalities within a breeding facility. The department has concluded that requiring 100 percent of test-eligible (the term replacing “eligible-aged,” as noted in the discussion of the proposed amendment to §65.90) mortalities to be tested is necessary to increase the confidence of early detection of CWD. Additionally, mortality data reported to the department following the promulgation of the current rules in 2016 indicate a significant increasing trend in mortalities within the average breeding facility for whatever reason. This means that the original baseline of 4.5 percent average expected mortality employed in the calculations made under current rule is an under-representation of actual mortality, which in turn means that the current testing requirements are inadequate to provide the minimum acceptable confidence of at least a 50-50 probability of detecting CWD, should it exist in any given breeding facility in the first year of testing under the proposed rules, and an increasing probability of detection thereafter if the disesease is present and spreading. On that basis, and in consultation with TAHC, the department has determined that to obtain an acceptable detection probability if it exists in any given breeding facility, the combination of 100 percent post-mortem testing, a 5:1 ratio of ante-mortem to post-mortem substitution (with the limitations on the magnitude and frequency of ante-mortem substitutions), combined with ante-mortem testing of all breeder deer prior to release is required to suffice.

        The proposed amendment to §65.94 also would add new subsection (g) to provide for denial of permit renewal for a permittee that has exceeded the maximum utilization of the 30 percent provision in more than two years during the life of the permit. Parks and Wildlife Code, §12.603, allows the department to refuse to issue or renew a deer breeder’s permit if the permittee fails to submit accurate applicable reports, which under the rules as proposed would not allow for ante-mortem test results in excess of the 30 percent provision.

        Provisions within the emergency rule currently in effect would be incorporated in the proposed amendment to §65.94 in the form of new subsections (h) and (i), dealing with breeder deer reported to the department as escaped and deer that cannot be confirmed as present in a breeding facility. A persistent issue over the years has been the discrepancies between the inventories reported to the department and the actual number of deer present in facilities when inspections are conducted. A related issue is the number of deer reported by deer breeders as having escaped captivity. A third issue is the accuracy of mortality reporting. Department records indicate that for each of the last five years an average of 26 deer breeders have reported a shared total of 159 escapes. Department records for the same time period indicate an average of 31 breeding facilities reported a shared total of 825 missing deer (deer that department records indicate should be present in the facility, but cannot be located or verified). The department suspects that at least some of the reporting, inventory, and escape issues are the result of intentional attempts to avoid compliance with the rules. Therefore, the proposed amendment would stipulate that deer reported as escaped and deer that cannot be accounted for will be treated as mortalities for the purposes of the rules. The proposed amendment would also stipulate that lawfully recaptured deer would not be treated as mortalities.

        Finally, the proposed amendment to §65.94 also would implement transition provisions to provide for data and reporting integrity for the same reasons identified in the discussion of the proposed amendment to §65.92.

        The proposed amendment to §65.95, concerning Movement of Breeder Deer, would alter subsection (a) to incorporate provisions from the current emergency rule regarding fawns sent to nursing facilities. A popular practice with deer breeders is the transfer of fawns (young deer) to a nursing facility. The department does not believe that deer younger than 120 days old in an MQ facility pose a significant risk of disease transmission; however, whatever risk there is can be mitigated by prohibiting any nursing facility from receiving fawns from more than one breeding facility per year.

        The proposed amendment also would add provisions to current subsection (c) to require all breeder deer to be ante-mortem tested with “not detected” results prior to release, provided the deer is at least six months old and the test sample is collected within eight months of release. The department believes that it is imperative to test all breeder deer before they are released  according to a testing protocol that provides an acceptable probability of detecting CWD if it exists in any given breeding facility. The proposed amendment also would create an exception to the requirements of §65.92 regarding the utilization of ante-mortem test results more than once.

        Finally, the proposed amendment to §65.95 also would remove provisions regarding transfer and release site classifications, and effects various housekeeping-type changes.

        The proposed amendment to §65.96, regarding Movement of DMP Deer, would remove testing requirements that are irrelevant in light of the proposed provisions that eliminate transfer category and release class provisions and would prohibit the return of breeder buck deer from DMP facilities to originating facilities, which is allowed under current rule. The proposed amendment also incorporates provisions from the current emergency rule that prohibit the transfer of breeder deer to a DMP facility from a breeding facility that is subject to the provisions of proposed new §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD or a trace-out release site.

        The proposed amendment to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, would provide for the cessation of the issuance of Triple T permits until further notice and create provisions prohibiting the issuance of Triple T permits authorizing the trapping of deer at sites that have ever received breeder deer. While the proposed amendments are intended to achieve early detection of CWD, they do not eliminate the risk for spreading CWD from previous breeder deer release sites or adjacent properties; therefore, release sites are intended to be terminal sites for breeder deer. The department strongly believes that, given the number of breeder deer that have been released in virtually every part of the state (more than 141,000 in the last five years), the practice of trapping and transporting deer should be stopped, at least on a temporary basis, until there is sufficient assurance that CWD has not been spread as a consequence of previous deer releases. The proposed amendment also makes numerous nonsubstantive conforming and housekeeping-type changes as discussed previously in this preamble with respect to other sections.

        The proposed amendment to §65.98, concerning Transition Provisions, would eliminate references to rules that either no longer exist or have no connection to the current or proposed rules, and provide that 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 section is required to comply with the applicable provisions of the division regarding CWD testing with respect to release facilities, which is necessary to provide for continuity of testing effort moving forward.

        Proposed new §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, would consist of the provisions of the current emergency rule in effect, less those provisions with general applicability that would be relocated to other sections within the subdivision as noted. As discussed previously in this preamble, this proposed rulemaking is necessary because of additional detections of CWD in deer breeding facilities, which, because the source facilities met the requirements of current rules to attain MQ status, indicates the current rules have not been effective in providing for early detection of CWD. Indeed, the evidence suggests that CWD likely was present in at least two of the facilities for more than a year before being detected. In addition to the proposed testing provisions discussed earlier in this preamble intended to increase the efficacy of surveillance in deer breeding facilities generally, proposed new §65.99 would set forth provisions that would apply to those deer breeding facilities that epidemiological investigations reveal are connected to positive facilities, either directly or indirectly.

        Proposed new subsection (a) would provide that in the event of conflicts with other rules, the provisions of proposed new §65.99 would prevail, which is necessary to prevent potential misunderstanding and confusion. The proposed new rule would affect facilities that pose a demonstrable threat to free-ranging and captive deer populations; therefore, the department must ensure that the threat is not exacerbated by conflicts with other regulations.

        Proposed new subsection (b) would prohibit the transfer of deer from a facility subject to the provisions of the section except as specifically provided in a herd plan. The facilities that would be affected by the proposed new rule are facilities that pose a demonstrably significant risk of harboring and spreading CWD; therefore, in consultation with TAHC, the department will prepare a herd plan for each affected facility to prescribe specific mitigation and surveillance measures necessary to achieve confidence that CWD is not present or being spread as a result of transfer or release.

        Proposed new subsection (c) would require all deer transferred from an affected facility to be tagged with a button-type RFID tag, which is necessary to identify released breeder deer in the event that further epidemiological investigation is necessary.

        Proposed new subsections (d) and (e) would prescribe testing requirements to regain MQ status for directly connected (“trace-out”) facilities, of which there are two categories: those facilities in which all trace deer received by the facility are either alive and still in the facility or have died and been post-mortem tested with “not detected” results (“Category A” facilities), and those facilities where that is not the case (i.e., some or all trace deer have been transferred, released, or died without being tested) (“Category B” facilities). For Category A facilities, proposed new subsection (d) would stipulate that the facility is immediately NMQ and require all trace deer to be euthanized and tested within seven days of the permittee being notified by the department of Category A status. Obviously, a facility that has received exposed deer poses a demonstrable threat of harboring and/or spreading CWD and should be prevented from transferring deer until a determination of disease status can be made. Requiring all trace deer to be euthanized and tested is necessary to gain the most immediate and definitive idea of the disease status of the exposed deer. The permittee would also be required to inspect the facility daily for mortalities, immediately report all test-eligible mortalities, and collect and submit test samples for those mortalities. Again, post-mortem testing provides the best basis for determining whether CWD is present or absent; thus, in concert with the euthanization and testing of all trace deer, the immediate reporting and testing of test-eligible mortalities is the most direct and efficacious method of determining if MQ status can be restored. The proposed new subsection would also provide that in lieu of euthanizing all trace deer, a permittee could request a custom testing plan while inspecting the facility daily and testing mortalities as specified. The department recognizes that some permittees for whatever reason could be reluctant to euthanize deer; however, the department also cautions that a custom testing plan would likely include a much longer timeframe for restoration of MQ status. Proposed new subsection (d)(4) would provide for the department in consultation with TAHC to decline to authorize a custom plan if an epidemiological assessment determines that a custom testing plan is inappropriate. The provision is necessary to address those situations in which there is simply no way to achieve statistical confidence that a captive population is free of CWD. Proposed new subsection (d)(5) would require, in addition to compliance with all applicable provisions of the subsection and the division, all test results to be “not detected” in order for MQ status to be restored. Because the facilities affected by the proposed new rule present a demonstrably higher risk of harboring and spreading CWD, it is prudent to require a perfect testing record.

        Proposed new subsection (e) would set forth the requirements for those facilities designated as Category B. Because Category B trace-out facilities are not in possession of some or all trace-out deer that entered the facility, the testing regime necessary to restore MQ status is not as straightforward as with Category A trace-out facilities. As with Category A trace-out facilities, the proposed new subsection would make a Category B trace-out facility automatically NMQ and require the euthanization and testing of all trace deer in the facility, daily inspections for mortalities, and immediate reporting and testing of mortalities, for reasons explained in the discussion of proposed new subsection (d). Additionally, the proposed new subsection would require ante-mortem testing of all deer in the facility according to schedules based on the elapsed time since the last known exposure. The timing of the ante-mortem testing required by the proposed new subsection is determined by what is known about the incubation time of CWD and the length of time between exposure and the ability of ante-mortem testing to detect CWD if it is present. As with proposed new subsection (d), the proposed new subsection would require all test results to be “not detected” and offer permittees the option of requesting a custom testing plan, providing also that the department could decline to authorize such a plan if in consultation with TAHC it is determined that it is inappropriate.

        Proposed new subsection (f) would set forth requirements for Tier 1 facilities, those facilities that have received an exposed deer from a trace-out facility. As with Category A and Category B facilities, Tier 1 facilities would be automatically NMQ upon notification by the department and be required to conduct daily inspections for mortalities, and immediately report and test them. Additionally, the proposed new subsection would predicate the restoration of MQ status on the attainment of one of four possible avenues: post-mortem results of "not detected" for every exposed deer received from a trace facility; restoration of MQ status by the department to all trace facilities from which exposed deer were received; ante-mortem testing as specified for Category B trace-out facilities in subsection (e)(2)(E); or compliance with the provisions of a custom testing plan. The intent of the department is to provide as many ways as possible, defensible within the precepts of sound biological and epidemiological science, to enable affected breeding facilities to regain MQ status.

        Proposed new subsection (g) would set forth the particular provisions affecting permittees who pursue the option of a custom testing plan in lieu of the testing requirements of subsection (d)-(f). The proposed new subsection would stipulate that within seven days of being notified of Category A trace-out facility, Category B trace-out facility, or Tier 1 facility status, a permittee could request the development of a custom testing plan approved by the department and TAHC. If the department in consultation with TAHC determines that a custom testing plan is feasible, the department will develop the plan and provide it to the permittee, who would then have seven days to decide whether to accept the plan or decline participation. Acceptance or refusal of the plan must be in writing. If a permittee chooses to accept the plan, the provisions of the subsection mandating the euthanasia of all trace deer do not apply; if the permittee declines participation in the plan, the requirements of the section resume applicability. The proposed subsection also stipulates that a participating facility remains NMQ until the provisions of the plan are satisfied.

        Proposed new subsection (h) would prescribe the conditions under which deer younger than 120 days of age would be allowed to be transferred to a nursing facility.

        Proposed new §65.100, concerning Violations and Penalties, would contain the provisions of current §65.99, with the addition of herd plans and custom testing plans to the list of components regulated by the division, violations of which are an offense.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program 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 or local governments as a result of administering or enforcing the rules, as the rules will be administered and enforced using existing personnel as part of their current duties under existing budgets.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be restoration of the minimally acceptable probability that CWD will be detected if it exists and a concomitant reduction in 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 an adverse economic impact on persons required to comply with the rules as proposed. Those impacts 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. Those 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. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the proposed rules will result in increased costs to deer breeders in the form of additional required testing to maintain or acquire MQ status. Therefore, the department has prepared an economic impact statement and regulatory flexibility analysis described in Government Code, Chapter 2006.

        Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to “engage in the business of breeding breeder deer in the immediate locality for which the permit was issued” and to “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation.” As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer. The same is not true of DMP or Triple T permit holders, who are authorized only to trap, temporarily detain, and release deer and are not authorized by those permits to buy or sell deer, or to exchange deer for anything of value.

        Government Code, §2006.001(1), defines a small or micro-business as a legal entity “formed for the purpose of making a profit” and “independently owned and operated.” A micro-business is a business with 20 or fewer employees. A small business is defined as a business with fewer than 100 employees, or less than $6 million in annual gross receipts. Department data indicate that there are 999 permitted deer breeders in Texas as of the preparation of this analysis. 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 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 will have an adverse impact on deer breeders.

        The variety of business models utilized by deer breeders makes meaningful estimates of potential adverse economic impacts difficult. 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 proposed rules, it is possible, perhaps even likely, that breeders and release site owners will be reluctant to purchase a breeder deer from a facility with a close relationship or a perceived relationship to a facility at which CWD has been detected.

        There will be no adverse economic impacts on sales of deer for MQ facilities as a result of the proposed new rules. As noted earlier in this analysis, the department for a variety of reasons views the rules as the minimally acceptable surveillance standard necessary to have an acceptable chance at detecting CWD; beyond that standard confidence regarding the health of deer in any given deer breeding facility is a matter of trust between buyer and seller.

        For all permittees, the adverse economic impact of the proposed rules would consist of testing costs and the possible loss of sales for NMQ facilities. Historically there have been liberations of up to 290 deer; however, the vast majority of releases (more than 75% ever reported) involve 10 or fewer deer.

        The proposed rules would require the submission of an obex and medial retropharyngeal lymph node to satisfy post-mortem testing requirements.

        The proposed rules would require the testing of all test-eligible mortalities that occur within a breeding facility.

        The proposed rules would increase the ratio at which ante-mortem tests could be substituted for required post-mortem tests. The current rules require a 3:1 ratio and the proposed rules would require a 5:1 ratio. Therefore, the rules as proposed would result in a 20 percent increase in cost of compliance for permittees utilizing ante-mortem testing to comply with the requirements of the rules, compared to the current rules.

        The proposed rules would require the ante-mortem testing of all breeder deer prior to being released.

        The proposed rules would require a deer breeder that is a Category A trace-out facility or Category B trace-out facility to euthanize all trace deer within the facility unless a custom testing plan is approved.

        The proposed new rules would cause an adverse economic impact to deer breeders who must undertake disease-testing requirements to continue certain activities. As a result, deer breeders would incur costs related to the increased testing and monitoring requirements of the proposed new rules.

        The cost of a CWD testing administered by the Texas A&M Veterinary Medicine Diagnostic Lab (TVMDL) on a sample collected and submitted by a deer breeder is a minimum of $25, to which is added a $7 accession 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 for ELISA (enzyme linked immunoassay) testing would be $30, plus any veterinary cost (which the department cannot quantify), and the fee for submitting an entire head for testing would be $70.

        Under the Veterinary Practice Act, the samples necessary for ante-mortem testing can only be obtained by a licensed veterinarian. Because veterinary practice models vary significantly (flat rates, graduated rates, included travel costs, herd call rates, sedation costs, etc.) in addition to pricing structures determined by the presence or absence of economic competition in different parts of the state, the cost of ante-mortem testing is difficult to quantify; however, based on anecdotal information and an informal survey of knowledgeable veterinarians, the department estimates the cost of tonsillar or rectal biopsies at approximately $70-200 to as much as $350 per head. It is important to note that ante-mortem procedures for CWD testing are relatively new, but the number of veterinarians with the training and expertise to perform them reliably is increasing; nevertheless, the fee structure for such procedures can best be described as still evolving.

        The department also notes that for any given deer breeder that is currently not MQ, compliance with the proposed rules could be achieved over time at the additional direct economic cost of CWD testing requirements imposed by the rules.

        If deer are euthanized for testing in order to reach the required number of post-mortem tests to become or remain MQ, 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 euthanizes deer to achieve testing requirements, and the number and type of deer euthanized. As noted above, the lost revenue from the euthanized deer could range from a few hundred dollars or less per deer to thousands of dollars per deer.

        Several alternatives were considered to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

        One alternative was to do nothing. This alternative was rejected because the presence of CWD in breeding facilities and free-ranging populations presents an actual, direct threat to free-ranging and captive cervid populations and the economies that depend upon them. Although the current rules provide some level of monitoring and containment, the repeated additional discoveries of CWD in captive populations indicates that the rules are not effective in providing early detection. Additionally, statistical modeling demonstrates that they do not provide at least a 50 percent probability of detection of CWD if it is present in a facility. Therefore, because the department has a statutory duty to protect and conserve the wildlife resources of the state, the current rules do not achieve the necessary level of vigilance needed to detect the presence and/or spread of CWD. Therefore, this alternative was rejected.

        Another alternative would be an absolute prohibition on the movement of deer within the state for any purpose. While this alternative would significantly reduce the potential spread of CWD, it would deprive deer breeders of the ability to engage in the business of buying and selling breeder deer. Therefore, this alternative was rejected because the department determined that it placed an avoidable burden on the regulated community.

        Another alternative would be imposing less stringent testing requirements. This alternative was rejected because the testing requirements in the proposed rules reflect mathematical models aimed at higher confidence than is possible under current disease-testing requirements to determine 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. Less stringent testing requirements also could result in the spread of CWD to additional breeding facilities, which would be designated NMQ and prohibited from transferring deer, which would, in turn, result in the total loss of sales opportunity. 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 available for the use and enjoyment of present and future generations.

        The department has determined that there will be no effect on rural communities, since the economic contribution of individual deer is not a significant driver of economic activities at either the macro or micro level.

        (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 impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) 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 rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (by creating provisions to impose testing requirements on deer breeding facilities indirectly connected to facilities where CWD has been detected);

                 (6) expand an existing regulation (by requiring an obex and RLN to be tested, by increasing the percentage of mortalities that must be tested and the ratio of ante-mortem tests that may be substituted for required post-mortem testing), but not limit or permanently repeal any regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

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-; email: mitch.lockwood@tpwd.texas.gov or via the department website at https://tpwd.texas.gov/business/feedback/meetings

5. Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter E, which authorizes the commission to make regulations governing the trapping, transporting, and transplanting of game animals, Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; 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 amendments affect Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.

6. Rule Text.

        §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) – (C) (No change.)

                         (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) – (ii) (No change.)

                         [(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) (No change.)

                         (B) Breeder Deer.

                                  (i) Except as provided in Division 2 of this subchapter, abreeding 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) (No change.)

                 (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].

        §65.88. Deer Carcass Movement Restrictions.

                 (a) (No change.)

                 (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) – (3) (No change.)

                         (4) a whole skull (or skull plate) with antlers attached, provided the skull plate has been completely cleaned of all internal soft tissue;

                         (5) – (7) (No change.)

                 (c) – (e) (No change.)

        The amendments and new section are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; Subchapter R, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that white-tailed deer may be temporarily detained in an enclosure; Subchapter R-1, which authorizes the commission to establish the conditions of a deer management permit, including the number, type, and length of time that mule deer may be temporarily detained in an enclosure (although the department has not yet established a DMP program for mule deer authorized by Subchapter R-1); and  §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

        The proposed amendments and new section affect Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.

        §65.90. Definitions. The following words and terms shall have the following meanings, except in cases where the context clearly indicates otherwise.

                 (1) Accredited testing laboratory — A laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD.

                 (2) Ante-mortem test — A CWD test performed on a live deer.

                 (3) Breeder deer — A white-tailed deer or mule deer possessed under a permit issued by the department pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter.

                 (4) Confirmed — A CWD test result of "positive" received from the 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) InconclusiveA 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) ReleaseThe 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 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[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 a test-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 (b)[paragraph (3) of this subsection];

                         (3) a DMP facility (however, deer transferred to DMP facilities cannot be recaptured and must be released as provided in the deer management plan); 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 Breeding Facilities Epidemiologically Connected to Deer Infected with CWD) 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 it has:[Class III release site if:]

                                          (A) received deer directly or indirectly from a positive breeding facility; and

                                                  [(i) it has:]

                                                  [(I) received deer from an originating facility that is a TC 3 facility; or]

                                                  [(II) received an exposed deer within the previous five years or has transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility]; and

                                          (B)[(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 section[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. 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 except as provided in this section or 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 section 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 (e)(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 this subsection to the satisfaction of the department and TAHC.

                         (4) The department in consultation with TAHC may decline to authorize a custom testing plan under this subsection 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.

        The repeal is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter E, which authorizes the commission to make regulations governing the trapping, transporting, and transplanting of game animals, Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; 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 repeal affects Parks and Wildlife Code, Chapter 43, Subchapters E, L, R, and R-1.

        §65.99. Violations and Penalties.

        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

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