Under new §65.95(b)(1)(A), a breeding facility will be classified as a TC 1 facility if it has achieved "fifth-year" or "certified" status in the TAHC Herd Certification Program. Under new §65.95(b)(1)(B)(i), a breeding facility will be classified as a TC 1 facility if it has obtained "not detected" CWD test results for at least 80% of total eligible mortalities over the last five report years, with a minimum number of post-mortem test results over that five-year period equal to at least 3.6% of the eligible-aged population during that period. The 3.6% minimum testing requirement is calculated as 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 have occurred within the breeding facility for each of the five consecutive years, multiplied by 3.6 percent. To develop this number, the department considered that the average natural mortality in a deer breeding facility is 4.5 percent of the eligible-aged deer population in the breeding facility each year. Therefore, if a 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. In order to calculate this number over a five-year period, the eligible-aged population of the breeding facility plus eligible-aged mortalities for each of the previous five report years is added together, and that sum is then multiplied by 3.6 percent. The resulting number is 80 percent of the average expected eligible-aged mortality for a deer breeding facility over a five-year period.

Alternatively, under new §65.95(b)(1)(B)(ii), a breeding facility that has submitted ante-mortem "not detected" CWD test results for 50% of eligible-aged deer in the breeding facility will be considered a TC 1 facility. The department understands that in anticipation of being able to use ante-mortem test results to achieve TC 1 status, some deer breeders may already have been conducting ante-mortem tests. Therefore, to facilitate the transition to the new rules for the report year beginning April 1, 2016 and ending March 31, 2017, a breeding facility that has submitted "not detected" ante-mortem test results for at least 25% of eligible-aged deer in the facility will be temporarily considered a TC-1, so long as the remaining "not detected" results are submitted by May 15, 2017.

New §65.95(b)(2) establishes that the testing requirements for TC 2 breeding facilities are the minimum testing requirements for MQ status stipulated in §65.94, relating to Breeding Facility Minimum Movement Qualification. A TC 2 breeding facility is a facility that is neither a TC 1 breeding facility nor a TC 3 facility.

New §65.95(b)(3) establishes provisions regarding classification and requirements for TC 3 breeding facilities. A TC 3 breeding facility is any breeding facility registered in TWIMS that is under a TAHC hold order, quarantine and/or herd plan and 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. As such, TC 3 breeding facilities are the facilities with the highest risk of harboring and spreading CWD. Therefore, the new rule prohibits the transfer of deer from any TC 3 facility unless such transfer is expressly authorized in a TAHC herd plan, and then only in accordance with the provisions of the division and the TAHC herd plan, and requires all transferred deer to be tagged in one ear with a NUES tag or button-type RFID tag approved by the department. The tagging requirement is necessary because breeder deer translocated from a TC 3 breeding facility are epidemiologically valuable. Should a released breeder deer test positive, the department and TAHC can use the eartag to quickly identify the source facility and initiate necessary epidemiological investigations and responses to prevent additional spread of CWD.

New §65.95(c) sets forth provisions governing release sites. New §65.95(c)(1)(A) provides that an approved release site consists solely of the specific tract of land to which deer are released and the acreage designated as a release site in TWIMS. In order to determine where release site testing requirements apply, and 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 locations where breeder deer are authorized to be released. However, this provision does allow a release site owner to modify the registered release site in order to reflect changes in acreage (such as the removal of cross-fencing), so long as the release site owner notifies the department of such modifications prior to the acreage modification. Any release site requirements provided in this subsection will also fully apply to the modified release site.

New §65.95(c)(1)(B) requires that liberated breeder deer have complete, unrestricted access to the entirety of the release site. Such a provision is necessary to ensure that released deer are not confined in smaller enclosures within a permitted release site. The testing requirements are based on the assumption that liberated deer commingle with the rest of the population, to which testing requirements apply. To keep the populations segregated defeats the purpose of release-site testing on the larger site. Additionally, for potential epidemiological investigations it is necessary that the release site information registered with the department be an accurate reflection of the acreage on which the deer were released. However, a release site owner is not prohibited from fencing areas that may be considered part of the release site, but from which deer should be excluded for safety reasons (e.g., air strips) or to prevent depredation (e.g., crops, ornamental plants).

New §65.95(c)(1)(C) stipulates that all release sites onto which breeder deer are liberated 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. In addition, the owner of the release site is responsible for ensuring that the fence and associated infrastructure retain deer under reasonable and ordinary circumstances. 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.

New §65.95(c)(1)(D) provides that any testing requirements of the division continue in effect until all required "not detected" test results are submitted and that a release site not in compliance with the testing requirements of the subsection is ineligible to receive deer and must continue to submit testing results until the testing requirements are satisfied. The epidemiological value of release site testing is compromised if release site tests are not submitted. Therefore, the department reasons that release sites should not be allowed to obtain liberated breeder deer until the release site demonstrates compliance with existing or previous requirements.

New §65.95(c)(1)(E) prohibits any intentional act that allows any live deer to leave or escape from a release site. As noted elsewhere in this preamble, it is important to ensure that breeder deer do not escape from the acreage onto which the deer have been liberated.

New §65.95(c)(1)(F) requires the owner of a Class II or Class III release site to maintain a harvest log. The requirements for the harvest log are set out in new §65.93. A harvest log is necessary to ensure that the release site keeps accurate records of deer harvested on the property.

New §65.95(c)(2) - (4) establishes classes of release sites. New §65.95(c)(2) establishes that a Class I release site is a release site that has received deer only from TC 1 facilities since August 15, 2016 (the effective date of the new rules). Class I release sites represent the lowest risk of harboring or spreading CWD and are therefore not required to perform CWD testing.

New §65.95(c)(3) establishes criteria and requirements for Class II release sites. New §65.95(c)(3)(A) provides that a Class II release site is a release site that receives deer from a TC 2 breeding facility (but not a breeding facility of lower status). New §65.95(c)(3)(B) requires that for each hunting year following the release of deer from a TC 2 breeding facility, the owner of the release site must submit "not detected" post-mortem test results for the first deer harvested and every deer harvested thereafter up to the first 15 deer harvested. Because a Class II release site has received breeder deer that represent a higher risk of harboring or transmitting CWD, some level of testing is necessary. However, as described elsewhere in this preamble, as a result of changes to the MQ requirements, the rules as adopted provide for the elimination of release-site testing at Class II release sites after the 2018-2019 hunting year. Therefore, §65.95(c)(3)(C) provides that the Class II testing requirements contained in §65.95(c)(3)(B) expire March 1, 2019 for Class II release sites that have submitted all of the required test results. For release sites that have not submitted the required test results, testing obligations continue until all required test results are submitted.

New §65.95(c)(4) establishes criteria and requirements regarding Class III release sites. New §65.95(c)(4)(A) establishes that a Class III release site is a release site that has received deer from an originating facility that is a TC 3 facility, 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 and has not been released from a TAHC hold order. Class III release sites represent the highest level of risk of harboring or transmitting CWD. As a result, new §65.95(c)(4)(B) requires the landowner of a Class III release site to submit post-mortem CWD test results for 100 percent of all hunter-harvested deer or 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, whichever is greater, and provides that the minimum harvest and testing provisions may be as prescribed in a TAHC herd plan. Similarly, new §65.95(c)(4)(C) prohibits the transfer of a breeder deer to a Class III release site unless the deer has been tagged in one ear with a NUES tag or button-type RFID tag. Since deer released onto a Class III release site pose a much higher epidemiological risk, it is important that such deer be easily identifiable as liberated deer.

New §65.96, concerning Movement of DMP Deer, sets forth the movement and testing requirements associated with DMP activities. The new rule requires a DMP release site to which breeder deer from a TC 2 breeding facility are released, or if the DMP property from which deer are trapped for DMP purposes is a Class II release site, to submit "not detected" test results for the first deer harvested and every deer harvested thereafter up to the first 15 deer harvested. As discussed elsewhere in this preamble, a TC 2 breeding facility or Class II release site represents a higher risk of transmitting CWD than a TC 1 breeding facility or Class I release site; therefore some level of testing is appropriate. The department has determined that testing the first 15 deer harvested each year through March 1, 2019, provides a reasonable assurance that CWD will be detected if it were present. The new rule prohibits the transfer of deer from a TC 3 breeding facility, Class III release site or from a release site or deer breeding facility that is not in compliance with applicable testing requirements. Breeder deer in a TC 3 breeding facility, deer in a Class III release site and deer from breeding facilities and release sites that are not in compliance with the applicable regulatory requirements pose an unacceptable risk of spreading CWD to free-ranging populations. The rule does not impose testing requirements on any DMP facility that either does not receive breeder deer or receives breeder deer solely from TC 1 deer breeding facilities.

New §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, sets forth general provisions and testing requirements applicable to the movement of deer under a Triple T or TTP permit.

New §65.97(a)(1) stipulates that unless expressly provided otherwise, the disease detection provisions of 31 TAC §65.102 cease effect upon the effective date of the new section. This is necessary to prevent regulatory conflict.

New §65.97(a)(2) provides that the department may require a map of any prospective Triple T trap site to be submitted as part of the application process, which is necessary to address situations in which the exact nature of a prospective Triple T site and its relationship to nearby or adjoining tracts of land is unclear with respect to previous releases.

New §65.97(a)(3) further enumerates the criteria under which the department will not authorize deer to be trapped for Triple T purposes, including a release site that has received breeder deer within five years of the application for a Triple T permit, a release site that has failed to fulfill testing requirements, any site where a deer has been confirmed positive for CWD, any site where a deer has tested "suspect" for CWD, or any site under a TAHC hold order or quarantine.

Further, new §65.97(a)(4) provides that in addition to the reasons for denying a Triple T permit listed in 31 TAC §65.103(c) (concerning 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 creates an unacceptable risk for the spread of CWD. Each of the enumerated criteria for permit refusal represents an unacceptable risk of spreading CWD to free-ranging populations.

In addition, new §65.97(a)(5) requires all Triple T deer to 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 (relating to Permits for Trapping, Transporting, and Transplanting Deer - Disease Detection Requirements) and for the RFID tag information to be submitted to the department. The new provision enables the department to identify all released deer harvested at a given release site (including deer that were released breeder deer) if an epidemiological investigation becomes necessary.

New §65.97(a)(6) further stipulates that a Triple T permit does not authorize 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), which is necessary to ensure that all deer are harvested by hunters under the regulations established for lawful hunting.

New §65.97(a)(7) requires all test samples to be collected or tested after the Saturday closest to September 30 (the first day of lawful hunting in any year), which is necessary to ensure that test samples are temporally linked to the year for which activities of the permit are authorized; however, new §65.97(a)(8) clarifies that this requirement does not apply to permits issued for the removal of urban deer, for which test samples may be collected between April 1 and the time of application.

New §65.97(b)(1) establishes the testing requirements for Triple T trap sites. At a Triple T trap site, the new rule requires 15 "not detected" post-mortem test results to be submitted prior to permit issuance. The department is confident that a sample of 15 deer from a prospective trap site that is not otherwise prevented from being a trap site by the new rules is sufficient to establish that CWD is not present and will not be spread.

New §65.97(b)(2) stipulates that 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. The department does not believe that deer trapped from a free-ranging population to be released elsewhere within that same population represent a significant disease-transmission risk.

New §65.97(c) sets forth the testing requirements for TTP permits. The new provision requires "not detected" test results for at least 15 eligible-aged deer from the trap site to be submitted and requires the landowner of a Class III release site where TTP deer are trapped to submit CWD test results for 100% of the deer trapped. The new rule also requires test results related to a TTP permit to be submitted to the department by the method prescribed by the department by the May 1 immediately following the completion of permit activities.

Transition Provisions

New §65.98, concerning Transition Provisions sets forth provisions to clarify enforcement of regulations with respect to the effective dates of various provisions and stipulates that the department's executive director develop a transition plan and issue appropriate guidance documents to facilitate an effective transition to this division from previously applicable regulations.

New §65.98(a) provides that offenses committed before the effective date of the new rules will be governed by the law in effect at the time, which is necessary to provide clear guidance for enforcement and judicial processes.

New §65.98(b) provides that a release site in compliance with the Interim Breeder Rules as of August 15, 2016 (the effective date of the new rules) is not subject to the testing requirements of the new rules until deer are liberated onto the release site.

New §65.98(c) provides that if a Class I release site becomes a Class II release site as a result of the release of deer onto the release site on or after August 15, 2016, the release site will be designated a Class I release site if all TC 2 breeding facilities that provided deer to the release site achieve TC 1 status by May 15, 2017, or if all breeder deer released on the release site between August 15, 2016 and October 1, 2016 are harvested during the 2016-2017 hunting season and return "not detected" CWD results and no deer from a TC 2 or TC 3 facility are released on the release site after October 1, 2016. This provision is intended to provide breeding facilities and release sites an opportunity to "test up" to a level sufficient to eliminate the requirement for future release-site testing. However, it should be noted that the "reset" will occur after the 2016-2017 hunting season and that release sites will be required to fulfill the release-site testing requirements for the 2016-2017 hunting season.