Proposed new §65.90(5) would define "CWD-positive facility" as "a facility where CWD has been confirmed." The definition is necessary because the proposed new rules contain provisions that are predicated on whether or not CWD has been detected and confirmed in a given deer breeding, DMP, nursing, or other facility authorized to possess white-tailed deer or mule deer.

Proposed new §65.90(6) would define "deer breeder" as "a person who holds a valid deer breeder's permit issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter L, and Subchapter T of this chapter." As with several other definitions in the proposed new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

Proposed new §65.90(7) would define "deer breeding facility (breeding facility)" as "a facility permitted 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." As with several other definitions in the proposed new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the proposed new rules but cumbersome to repeat.

Proposed new §65.90(8) would define "department (department)" as "Texas Parks and Wildlife Department." The definition is necessary to avoid confusion, since the proposed new rules contain references to another state agency.

Proposed new §65.90(9) would define "eligible mortality" as "a breeder deer that has died within a deer breeding facility and is 16 months of age or older, or, if the deer breeding facility is enrolled in the TAHC CWD Herd Certification Program, is 12 months of age or older." The definition is necessary, in part, because the proposed rules require CWD testing of eligible mortalities. 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 USDA use a standard of 12 months.

Proposed new §65.90(10) would define "exposed deer." This definition would provide 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 proposed 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.

Proposed new §65.90(11) would define "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.

Proposed new §65.90(12) would define "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 proposed new rules set forth testing requirements and other obligations for persons who own land where breeder deer are released.

Proposed new §65.90(13) would define "landowner's authorized 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 proposed new §65.90(12).

Proposed new §65.90(14) would define "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 proposed new rules require breeder deer released to the wild to be tagged with either a RFID or NUES tag.

Proposed new §65.90(15) would define "originating facility" as "a facility that is the source facility identified on a transfer permit." The definition is necessary because the proposed new rules allow breeder deer to be transferred between deer breeders, making it necessary to distinguish one from the other.

Proposed new §65.90(16) would define "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.

Proposed new §65.90(17) would define "release site" as "a specific tract of land that has been approved by the department for the release of breeder deer under this division." The definition is necessary because the proposed new rules impose CWD testing requirements for tracts of land where breeder deer are liberated if the breeder deer originate from certain types of deer breeder facilities.

Proposed new §65.90(18) would define "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 proposed new rules condition the eligibility of deer breeders to transfer and release deer on the completeness and accuracy of those reports.

Proposed new §65.90(19) would define "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 proposed new rules require breeder deer released to the wild to be tagged with either an RFID or NUES tag.

Proposed new §65.90(20) would define "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 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 proposed rules categorize breeding facilities and release sites based on relative risk. The definition is necessary because the proposed new rules predicate the eligibility of deer breeding facilities to transfer and receive breeder deer, and the release site testing requirements once they have received deer, upon the status of the breeding facility or release site.

Proposed new §65.90(21) would define "Tier 1 facility" as "any facility authorized to possess white-tailed deer or mule deer that has received an exposed deer within the previous five years or transferred deer to a CWD-positive facility within the five-year period preceding the confirmation of CWD in the CWD-positive facility." The definition is necessary to offer a shorthand reference to those facilities that have a direct connection to a CWD-positive facility.

Proposed new §65.90(22) would define "TAHC" as "Texas Animal Health Commission." The Texas Animal Health Commission is the state agency charged with protecting livestock in the state, including farmed cervids.

Proposed new §65.90(23) would define "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 proposed 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.

Proposed new §65.90(24) would define "TAHC Herd Plan" as "a set of requirements for disease testing and management developed by TAHC for a specific facility." The proposed 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.

Proposed new §65.90(25) would define "TWIMS" as "the department's Texas Wildlife Information Management Services (TWIMS) online application." TWIMS is the system that all deer breeders are required to use to file required notifications and reports required by current rule.

General Provisions

Proposed new §65.91, concerning General Provisions, would set forth a number of provisions that are applicable to the transfer or release of breeder deer.

Proposed new §65.91(a) would stipulate that in the event that a provision of the proposed new rules conflicts with any other provision of 31 TAC Chapter 65, the new rules (if adopted) would apply. Because of the need to quickly implement a regulatory response to the emergence of CWD there is insufficient time to harmonize the proposed new rules with the agency's existing rules governing white-tailed deer and mule deer. Therefore, the proposed new rules would clarify that the proposed new rules govern in the event of conflict.

Proposed new §65.91(b) would prohibit the transfer of live breeder deer for any purpose except as provided by the proposed new rules. Because deer breeders frequently transfer deer to and receive deer from other deer breeders, as well as transfer breeder deer for release, it is necessary in light of the emergence of CWD in a Texas deer breeding facility to prohibit the movement of breeder deer except as authorized by the proposed rules.

Proposed new §65.91(c) would prohibit the movement of deer to or from a deer breeding facility where CWD has been detected, beginning with the notification that a "suspect" test result has been received and lasting until the department authorizes resumption of activities. Given that CWD is an infectious disease, it is necessary to prohibit certain activities in order to contain the spread of the disease.

Proposed new §65.91(d) would prohibit the transfer of exposed breeder deer from a deer breeding facility unless specifically authorized in a TAHC herd plan and then only in accordance with the provisions of the proposed new rules. Under TAHC rules, any deer breeding facility that receives breeder deer from CWD-positive facility is automatically placed under a "hold order," which prohibits the movement of breeder deer out of the facility while TAHC conducts an epidemiological investigation and creates a herd plan for the facility based on that investigation. If the TAHC herd plan provides that movement of exposed deer can resume, then such movement may result if authorized by and if in compliance with the proposed new rules (if adopted).

Proposed new §65.91(e) would stipulate that a breeding facility or release site that receives breeder deer from an originating facility of lower status would automatically assume the status of the originating facility and become subject to the testing and release requirements of the proposed new rules. The proposed new rules create a tiered system of testing requirements based on the level of risk of transmission of CWD for each deer breeding facility. 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 proposed new rules would 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.

Proposed new §65.91(f) would explicitly outline the timeframes for facilities or release sites to increase its status following a loss of status. A discussion of this provision was provided earlier in this preamble.

Proposed new §65.91(g) would stipulate that a CWD test is not valid unless it is performed by an accredited testing facility. Obviously, the department's efforts to detect and contain CWD depend on the quality of the testing itself. At the current time, USDA will not certify herd plans for cervidae unless CWD testing is performed by laboratories that have been approved by USDA. The standard for approval is compliance with 9 CFR §55.8, which sets forth the specific tests, methodology, and procedure for conducting CWD tests. Therefore, in order to ensure that CWD tests are performed in accordance with uniform standards, the proposed new rules would require all CWD tests to be performed by a laboratory approved by USDA. Additionally, the proposed new subsection would specify which tissues must be submitted and who is authorized to collect those tissues. At the current time, the only CWD testing approved by USDA must be performed on certain tissues from eligible mortalities, such as the obex (a structure in the brain) or certain lymph nodes. Laypersons can be trained to remove an obex, but the successful extraction of appropriate lymph nodes requires an experienced veterinarian, technician, or biologist. Therefore, the proposed new subsection also stipulates that to be valid, a CWD test must be performed on an obex, which can be collected by anyone. If a lymph node is to be tested in addition to the obex, it must be a medial retropharyngeal lymph node collected from the eligible mortality by an accredited veterinarian or other person approved by the department.

Proposed new §65.91(h) would require all applications and notifications required by the proposed new rules to be submitted to the department electronically via the department's TWIMS application or by another method expressly authorized by the department. Under current rule, deer breeders are required to submit all applications and reports via TWIMS; the proposed new rules would do so also, but also allow the department to authorize another method in an effort to account for unexpected situations, such as TWIMS being unavailable.

Proposed new §65.91(i) would require compliance with TAHC rules concerning CWD, to the extent that they are applicable to white-tailed deer and mule deer. The department's response to CWD is part of a multi-agency cooperative effort with TAHC. In addition to the applicability of the department's rules regarding movement of breeder deer, TAHC rules govern herd plans; the department intends to enforce those rules under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L.

Transfer Categories and Requirements

Proposed new §65.92, concerning Transfer Categories and Requirements, would set forth provisions generally applicable to deer breeding facilities as well as delineating a tiered system of testing requirements predicated on a given deer breeding facility's exposure to deer from a CWD-positive facility.

Proposed new §65.92(a) would establish those provisions generally applicable to the transfer of breeder deer from a deer breeding facility.

Proposed new §65.92(a)(1) would provide for the transfer of breeder deer, pursuant to activation of a valid transfer permit, for four purposes: (1) to another deer breeder; (2) to an approved release site; (3) to a Deer Management Permit (DMP) facility; or (4) to another person for nursing purposes. Under previous rules at §65.610 of this title (relating to Transfer of Deer), breeder deer may be transferred only after the activation of a transfer permit and only for specific purposes (to another deer breeder; for release to the wild; to a DMP facility; to the holder of an educational display or zoological permit issued by the department; or on a temporary basis to another person for nursing purposes or to receive medical attention). Given the threat of transmission of CWD, the proposed new rules contemplate the qualified transfer of breeder deer in a narrower context. Therefore, the proposed new rules would allow the movement of breeder deer for four purposes, contingent on the satisfaction of testing requirements imposed by the proposed new rules or a TAHC herd plan.

Notwithstanding the provisions of proposed new §65.92(a)(1), proposed new §65.92(a)(2) would prohibit the movement of breeder deer if: (1) the transfer is not authorized under a TAHC herd plan; (2) "not detected" CWD test results have been submitted for less than 20 percent of eligible mortalities at the breeding facility since May 23, 2006; (3) the breeding facility has an unreconciled herd inventory; or (4) the breeding facility is not in compliance with the provisions of §65.608 of this title (relating to Annual Reports and Records). The basis for each of these three prohibitions is explained as followed.

With regard to the first prohibition, since a TAHC herd plan will normally not authorize the movement of breeder deer if the deer breeder does not institute a testing program, and/or comply with other requirements, proposed new paragraph (2)(A) would prohibit movement of breeder deer from a breeding facility that is not authorized to do so under the TAHC herd plan for the facility.

With regard to the second prohibition, previous rules at §65.604 of this title (relating to Disease Monitoring) allowed a deer breeder to move breeder deer if, among other things, CWD test results of 'not detected' had been returned from an accredited test facility on a minimum of 20 percent of all eligible breeder deer mortalities occurring within the facility since May 23, 2006. Although from an epidemiological perspective this standard provides a relatively low statistical confidence of detecting CWD if it exists in a facility, a less stringent standard would be of little value in detecting CWD. Therefore, any breeding facility not in compliance with this standard should not be allowed to move breeder deer until it has "tested out," or submitted sufficient test samples of "not detected" to provide a higher level of confidence that CWD will not be transmitted from the facility.

The third and fourth prohibitions are related to reconciled herds and annual reports. Current department rules at §65.608 of this title (relating to Annual Reports and Records) require deer breeders to submit an annual report. The annual report must include a herd reconciliation that accounts for every breeder deer held, acquired, or transferred by a breeding facility, as well as births and mortalities. A breeding facility that is not in compliance with the reporting requirements or has submitted incomplete or inaccurate records frustrates efforts to determine the source and/or disposition of every deer in the facility, meaning that any number of scenarios could be possible with respect to disease transmission.