New §65.90(11) defines "eligible-aged deer." This definition provides two standards for determining if a deer is an "eligible-aged deer." Under §65.90(11)(A), "if the deer is held in a breeding facility enrolled in the TAHC CWD Herd Certification Program" an eligible-aged deer is a deer that is "12 months of age or older." However, for any other deer, an eligible-aged deer is a deer that is "16 months of age or older." CWD is difficult to detect in deer younger than 12 months of age. The department's previous CWD testing rules at §65.604(e) of this title provided for testing of mortalities that were 16 months or older. The department is retaining that standard but is also recognizing that the TAHC and the United States Department Agriculture (USDA) use a standard of 12 months.

New §65.90(12) defines "eligible mortality" as "an eligible-aged deer that has died." Because the rules provide for post-mortem testing of deer, it is necessary to define an "eligible" mortality" from which a valid post-mortem sample can be collected and tested. As mentioned earlier, CWD is difficult to detect in younger animals; therefore, the test results required to engage in certain activities under the new rules must be obtained from eligible aged deer.

New §65.90(13) defines "exposed deer." This definition replaces the former definition used in the Interim Breeder Rules for "Tier 1," which proved to be easily confused with other terms used in the rules, such as "TC 1." The definition provides that "unless the department determines through an epidemiological investigation that a specific breeder deer has not been exposed to CWD, an exposed deer is a white-tailed deer or mule deer that is in a CWD-positive facility or was in a CWD-positive facility within the five years preceding the confirmation of CWD in that facility." The definition is necessary to distinguish the circumstances under which certain provisions of the new rules are applicable. The five-year timeframe was selected because a deer infected with CWD could shed prions (the infectious agent believed to cause CWD) and infect other animals during this period before exhibiting clinical symptoms of the disease. However, if an epidemiological investigation concludes that any part of the five-year window is unnecessary, the status of "exposed" could be altered.

New §65.90(14) defines "facility" as "any location required to be registered in TWIMS under a deer breeder permit, Triple T permit, or DMP, including release sites and/or trap sites." The definition is necessary to provide a shorthand term for the locations to which the new rules apply, rather than having to enumerate a cumbersome list of sites. (As explained below, TWIMS is the department's Texas Wildlife Information Management Services online application.)

New §65.90(15) defines "hunter-harvested deer" as "a deer required to be tagged under the provisions of Subchapter A of this chapter (relating to Statewide Hunting Proclamation)." The definition is necessary because the proposed rules in some instances require deer harvested by hunters (as opposed to other types of mortality) to be tested for CWD.

New §65.90(16) defines "hunting year." Because the new rules stipulate the testing of deer harvested by lawful hunting, it is necessary to create a term that covers hunting under the normal seasons and bag limits established for each county by the Commission and hunting that occurs during the period of validity of tags issued pursuant to the Managed Lands Deer program; therefore, "hunting year" is defined as "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)."

New §65.90(17) defines "Interim Breeder Rules" as "rules regarding Chronic Wasting Disease-Movement of Deer, approved by the Commission on November 5, 2015, and published in the Texas Register on January 29, 2016 (41 TexReg 815)." The definition is necessary because the new rules reference compliance with the Interim Breeder Rules; therefore, a definition is necessary to establish a shorthand term for a phrase that is used in the new rules but cumbersome to repeat.

New §65.90(18) defines "landowner (owner)" as "any person who has an ownership interest in a tract of land, and includes a landowner's authorized agent." The definition is necessary because the new rules set forth testing requirements and other obligations for persons who own land where breeder deer are released.

New §65.90(19) defines "landowner's authorized agent (agent)" as "a person designated by a landowner to act on the landowner's behalf." The definition is necessary for the same reason set forth in the discussion of new §65.90(18).

New §65.90(20) defines "liberated deer" as "a free-ranging deer that bears evidence of a tattoo (including partial or illegible tattooing) or of having been eartagged at any time (holes, rips, notches, etc. in the ear tissue)." The definition is necessary because the new rules, in certain circumstances, require the testing of hunter-harvested deer that could be identified as deer that have been liberated.

New §65.90(21) defines "Movement Qualified (MQ) as "a designation made by the department pursuant to this division that allows a deer breeder to lawfully transfer breeder deer." The new rules impose requirements, including a minimum level of testing, that deer breeding facilities must meet in order to be authorized by the department to transfer breeder deer under the rules. It is therefore necessary to create a shorthand term to reference that ability.

New §65.90(22) defines "Not Movement Qualified (NMQ)" as "a designation made by the department pursuant to this division that prohibits the transfer of deer by a deer breeder." Because the new rules prohibit the movement of deer from any facility that is not MQ, a definition for that condition is necessary.

New §65.90(23) defines "NUES tag" as "an ear tag approved by the United States Department of Agriculture for use in the National Uniform Eartagging System (NUES)." The definition is necessary because the new rules require certain breeder deer and Triple T deer released to a release site to be tagged with either a RFID or NUES tag.

New §65.90(24) defines "originating facility" as "any facility from which deer have been transported, transferred, or released, as provided in this division or as determined by an investigation of the department, including for breeder deer, the source facility identified on a transfer permit and for deer being moved under a Triple T permit, the trap site." The new rules impose certain requirements, restrictions, or prohibitions, based on the status of the property or facility from which deer are moved. Therefore, a shorthand definition is necessary to ensure clarity.

New §65.90(25) defines "post-mortem test" as "a CWD test performed on a dead deer," which is necessary in order to delineate post-mortem testing from ante-mortem testing. The new rules impose requirements and restrictions based on the type of test being performed.

New §65.90(26) defines "properly executed." Because the new rules require the submission of electronic reports and forms that provide critical information to the department, it is necessary to make clear that all information on such a form or report must be provided. Therefore, the new rules define "properly executed" as "a form or report required by this division on which all required information has been entered."

New §65.90(27) defines "reconciled herd" as "the deer held in a breeding facility for which the department has determined that the deer breeder has accurately reported every birth, mortality, and transfer of deer in the previous reporting year." The definition is necessary because the proposed rules require a deer breeder to have a reconciled herd in order to transfer or release breeder deer. Herd reconciliation is a necessary component of disease management.

New §65.90(28) defines "release site" as "a specific tract of land that has been approved by the department for the release of deer under this division." The definition is necessary because the new rules impose CWD testing and other requirements for certain tracts of land where breeder deer are liberated or transferred.

New §65.90(29) defines "reporting year" as "the period of time from April 1 of one calendar year to March 31 of the next calendar year." Deer breeders are required to file annual reports with the department. The new rules condition the eligibility of deer breeders to transfer and release deer on the completeness and accuracy of those reports. In addition, the new rules contain provisions that begin or end with a specified reporting year. Therefore, it is necessary to clarify the definition of "reporting year."

New §65.90(30) defines "RFID tag" as "a button-type ear tag conforming to the 840 standards of the United States Department of Agriculture's Animal Identification Number system." The definition is necessary because the new rules require certain breeder deer and Triple T deer released to release sites to be tagged with either an RFID or NUES tag.

New §65.90(31) defines "status" as "the level of testing required by this division for any given deer breeding facility or release site." The definition also clarifies that the highest status for a deer breeder is Transfer Category is 1 and the lowest status is Transfer Category 3. Similarly, Class I is the highest status for release sites and Class III is the lowest. As noted previously, the new rules categorize breeding facilities and release sites based on relative risk. The definition is necessary because the new rules include regulatory requirements that are predicated upon the status of a breeding facility or release site.

New §65.90(32) defines "submit." In order to eliminate lengthy repetition throughout the new rules, "submit" is defined as "when used in the context of test results, provided to the department, either directly from a deer breeder or via an accredited testing laboratory."

New §65.90(33) defines "suspect." The testing process for determining that a deer is, in fact, infected with CWD is two-fold. If the initial test on a sample indicates the presence of the disease, the sample or another sample from the same animal is re-tested by the National Veterinary Service Laboratories of the United States Department of Agriculture. Because the new rules make any facility NMQ pending confirmation (i.e., the re-test), it is necessary to create a term for the initial test result that causes the re-test. Therefore, "suspect" is defined as "an initial CWD test result of "detected" that has not been confirmed."

New §65.90(34) defines "TAHC" as "Texas Animal Health Commission." As noted elsewhere in this preamble, the Texas Animal Health Commission is the Texas state agency authorized to manage "any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable, even if the agent of transmission is an animal species that is not subject to the jurisdiction" of TAHC. Tex. Agric. Code §161.041(b). Because the new rules include provisions that are based on determinations or actions of TAHC, a short-hand reference to the agency is necessary.

New §65.90(35) defines "TAHC CWD Herd Certification Program" as "the disease-testing and herd management requirements set forth in 4 TAC §40.3 (relating to Herd Status Plans for Cervidae)." The new rules have provisions specific to deer breeders who participated in the TAHC herd certification program. The definition makes it clear that references to herd certification are references to the herd certification program administered by TAHC.

New §65.90(36) defines "TAHC Herd Plan" as "a set of requirements for disease testing and management developed by TAHC for a specific facility." In response to the discovery of a disease over which TAHC has jurisdiction, including CWD, the TAHC may issue a herd plan which imposes certain testing requirements and movement restrictions. The new rules in some cases make eligibility to transfer or receive breeder deer contingent on compliance with a herd plan developed by TAHC. The definition makes it clear that references to herd plans are references to herd plans developed by TAHC.

New §65.90(37) defines "Test, Test Result(s), or Test Requirement" as "a CWD test, CWD test result or CWD test requirement as provided in this division." This definition is provided to ensure clarity regarding the type of test referenced whenever the word "test" is used without the acronym "CWD."

New §65.90(38) defines "trap site" as "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," which is necessary because the new rules impose testing and reporting requirements on trap sites under various permits.

New §65.90(39) defines "Triple T permit." Because the new rules affect certain activities conducted under Triple T permits, the term is defined in order to eliminate any confusion. A Triple T permit is "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)." In the context of the new rules, a reference to Triple T permit is limited to a Triple T permit for activities involving white-tailed and mule deer.

New §65.90(40) defines "Trap, Transport and Process (TTP) permit"-as "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)." The proposed definition is necessary to clarify and distinguish TTP and Triple T permit requirements.

New §65.90(41) defines "TWIMS" as "the department's Texas Wildlife Information Management Services (TWIMS) online application." TWIMS is the system that is required to be used to file required notifications and reports under the rules.

New §65.91, concerning General Provisions, sets forth a number of provisions that are applicable to the transfer or release of deer.

New §65.91(a) stipulates that in the event that a provision of the new rules conflicts with any other provision of 31 TAC Chapter 65, other than Division 1 of Subchapter B (regarding Disease Detection and Response), the new rules apply. This provision is necessary to avoid confusion resulting from a conflict between the new rules and the agency's existing rules governing white-tailed deer and mule deer. Provided, however, in the event of a conflict between the new rules and Division 1 of Subchapter B of Chapter 65, Division 1 would control. Division 1 addresses the establishment of zones within which movement and testing requirements apply to minimize the risk of CWD expanding beyond the area(s) in which it currently exists in free-ranging deer populations. Although the new rules are intended to be independent of the rules in Division 1, there may be instances in which the new rules would appear to authorize an activity that is prohibited by Division 1. In such a case, the provisions of Division 1 would control.

New §65.91(b) prohibits the transfer of live breeder deer or deer trapped under a Triple T permit, TTP permit or DMP for any purpose except as provided by the new rules. Because deer breeders, landowners, and wildlife managers frequently transfer deer under various permits, it is necessary in light of the emergence of CWD in Texas deer breeding facilities as well as in free-ranging deer to prohibit the movement of breeder deer except as authorized by the proposed rules.

New §65.91(c) prohibits the movement of deer to or from any facility where CWD has been detected, beginning with the notification that a "suspect" test result has been received from an accredited testing laboratory, irrespective of how the sample was obtained or who collected the sample. New §65.91(c) also stipulates that such prohibition takes effect immediately upon the notification of a CWD "suspect" test result and continues in effect until the department expressly authorizes the resumption of permitted activities at that facility. The new provision is necessary because CWD is an infectious disease, which makes it necessary to prohibit certain activities that could result in the spread of the disease while test results are confirmed. If a "suspect" test result is determined to be "not detected" then the department may authorize resumption of permitted activities. However, if the result is "confirmed" then provisions of the rule regarding exposed facilities would govern.

New §65.91(d) provides that notwithstanding any provisions of the division, a facility may not move deer to any location if prohibited by a TAHC herd plan associated with a TAHC hold order or TAHC quarantine. As noted elsewhere in this preamble, TAHC is the state agency authorized to manage "any disease or agent of transmission for any disease that affects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable, even if the agent of transmission is an animal species that is not subject to the jurisdiction" of TAHC. Tex. Agric. Code §161.041(b). In accordance with that authority, TAHC may issue a hold order or quarantine preventing the movement of deer. New §65.91(c) clarifies that movement of deer in violation of a TAHC hold order or quarantine is not authorized.

New §65.91(e) provides that 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 the division at that status for a minimum of two years, if the facility is a breeding facility, or for the period specified for release sites in §65.95(c) of this title (relating to Movement of Breeder Deer). The new rules create a tiered system of testing requirements based on the level of risk of transmission of CWD for each deer breeding facility or release site. The level of risk is based on the degree to which the facility has been monitored for the presence of CWD, or contains or is connected to exposed animals. Epidemiological science dictates that a population receiving individuals from a higher risk population is itself at greater risk; therefore, the new rules address such transfers from higher risk to lower risk populations by requiring the receiving facility or release site to comply with the testing requirements associated with the originating facility, and stipulates a duration for the application of continued testing requirements.