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

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

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

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

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

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

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

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

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

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

Proposed new §65.93(a)(1) would stipulate that an approved release site consists solely of the specific tract of land and acreage designated as a release site in TWIMS. Proposed new §65.93(a)(2) also would require all release sites to be surrounded by a fence of at least seven feet in height that is capable of retaining deer at all times. Proposed new §65.93(a)(2) also would require the owner of the release site to be responsible for ensuring that fencing and associated infrastructure retain the deer under ordinary and reasonable circumstances. In order to provide a measure of confidence that CWD is not spread from those places where breeder deer are released, it is necessary to identify the specific location where breeder deer are authorized to be released. Similarly, it is necessary to establish a level of vigilance sufficient to give reasonable assurance that breeder deer are not allowed to leave the specific premise where they were released.

Proposed new §65.93(a)(3) would set forth the on-site harvest documentation requirements for Class II and Class III release sites. The proposed new paragraph would require the owner of a Class II or Class III release site to maintain a daily harvest log at the release site. For each deer harvested from a Class II or Class III release site, the proposed new rules would require the hunter's name and hunting license number (or driver's license number, if the daily harvest log is also being used as a cold storage/processing book) to be entered into the harvest log, along with the date of kill, type of deer killed, any alphanumeric identifier tattooed on the deer, the tag number of any RFID or NUES tag affixed to the deer; and any other identifier and identifying number on the deer. The proposed new provision would enable the department to identify all deer harvested at a given release site (including deer that were released breeder deer) if an epidemiological investigation becomes necessary. The proposed new paragraph also would require the daily harvest log to be presented to any department employee acting within the scope of official duties and for the contents of the daily harvest log to be reported to the department via TWIMS by no later March 15 of each year.

Proposed new §65.93(a)(4) would provide that a release site's status cannot be altered by the sale or subdivision of a property to a related party if the purpose of the sale or subdivision is to avoid the requirements of this division. The department believes that a landowner subject to the provisions of the proposed new rules should not be able to avoid compliance simply by selling, donating, or trading the property to another person related to the seller.

Proposed new §65.93(a)(5) would require the owner of a release site, as a consequence of consenting to the release of breeder deer on the release site, to submit all required CWD test results to the department as soon as possible but not later than May 1 of each year. The proposed new rules contemplate a disease management strategy predicated on the results of CWD testing. Incomplete, inadequate, or tardy reporting of test results confounds that strategy. For this reason, the proposed new paragraph would establish a date certain for reporting test results to the department. The proposed new paragraph also would provide that failure to timely submit test results will result in the release site being declared ineligible to be a destination for future releases. In light of the threat that CWD poses to native and farmed deer, it is prudent to suspend release site privileges for any landowner who does not comply with the testing requirements for release sites.

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

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

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

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

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

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

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

Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of the permit programs affected will administer and enforce the rules as part of their current job duties.

Mr. Wolf also has determined that for each of the first five years the new rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduction of the probability of CWD being spread from facilities where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas. Additionally, the protection of free-ranging deer herds will have the simultaneous collateral benefit of protecting captive herds, and maintaining the economic viability of deer breeding operations.

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

Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small businesses. These guidelines state that "[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency's regulatory jurisdiction." The guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a "direct economic impact." Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

Parks and Wildlife Code, §43.357(a), authorizes a person to whom a breeder permit has been issued to "engage in the business of breeding breeder deer in the immediate locality for which the permit was issued" and to "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation." As a result, deer breeders are authorized to engage in business activities; namely, the purchase and sale of breeder deer.