One factor in determining relative risk concerns a breeding facility's participation in TAHC's CWD Herd Certification Program. See, 4 TAC §40.3 (relating to Herd Status Plans for Cervidae). Participation in the TAHC CWD Herd Certification Program requires that breeding facilities comply with more stringent CWD testing, monitoring, and other requirements. Breeding facilities that have complied with the testing, monitoring, and other requirements of this program for five years or more are considered to be at the lowest risk for CWD.

Another factor in evaluating risk is the relationship of a breeding facility or release site to a breeding facility at which CWD has been detected. As described in more detail elsewhere in this preamble, those facilities and sites most closely related to the CWD-positive facility are referred to as "Tier 1" facilities.

Another significant component of the new rules is the requirement that breeder deer may be released (liberated) only on release sites that are surrounded by a fence of at least seven feet in height and that is capable of retaining deer at all times. Because deer held under deer breeder permits are frequently liberated for stocking and/or hunting purposes (27,684 in 2014), the potential for disease transmission from liberated breeder deer to other free-ranging deer is of concern. Although the release of CWD-positive deer will threaten free-ranging deer within a specific release site, the existence of a high fence around this release site will reduce or slow the transmission of the disease across the broader landscape.

The new 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 new rules implement a more rigorous testing protocol within certain deer breeding facilities and at certain release sites than was previously required. In an effort to balance the needs of the many and varied landowner, management, and deer hunting interests in the state, the department has attempted to allow all deer breeders other than those with a CWD-positive facility the opportunity (which in some instances may require additional testing or other actions) to continue to move and release breeder deer.

Changes from Emergency CWD Breeder Rules

In addition to the changes from the rule as proposed, the new rules differ from the emergency CWD breeder rules in several ways. Although the following is not an exhaustive or comprehensive comparison, it addresses the major differences between the new rules and the emergency CWD breeder rules.

Substantive Changes from Emergency Rules

There are several other differences between the emergency CWD breeder rules and the current rules:

1. Section 65.91(e) of the emergency CWD breeder rules provides that if a breeding facility or release site accepts breeder deer from a facility of lower status, then the receiving facility assumes that lower status for the purpose of the rules. Although the emergency CWD breeder rules provide a mechanism for Transfer Category (TC) 2 status to be re-established for facilities that have dropped to TC 3 status, the emergency CWD breeder rules do not specify a timeframe for such a transition. Therefore, new §65.91(f) stipulates that a facility that has dropped in status may increase in status, either in two years (TC 3 to TC 2) or in five (TC 2 to TC 1). Following the adoption of the emergency CWD breeder rules, questions arose regarding the length of time for a facility that has dropped in status to obtain the higher status and this provision was intended to address that question. The department understands, however, that these provisions/clarifications may be moot considering the August 31, 2016 expiration of these rules. Nonetheless, the department included these provisions to address apparent ambiguity absent the expiration date.

2. Similarly, the emergency CWD breeder rules do not specifically address the status of new facilities permitted after March 31, 2015. Therefore, new §65.92(a)(4) would contain clarifying language to the effect that facilities permitted after March 31, 2015 would assume the status of the lowest status of deer accepted. In the same vein, the emergency CWD breeder rules do not explicitly state that it is possible for TC 2 facilities to become TC 1 facilities (although it would be automatic if "5th year" or "certified" status under the TAHC Herd Certification Program is attained).

3. Section 65.93(b)(3)(A) of the emergency CWD breeder rules did not note that a release site is a Class III release site if it is a Tier 1 facility. New §65.93(b)(3)(B)(i) remedies that oversight.

Clarifying and Other Changes from Emergency CWD Breeder Rules

1. The CWD emergency breeder rules did not contain a definition of "confirmed" as it relates to CWD testing. Therefore, in an effort to avoid confusion, new §65.90(3) defines the term as "a CWD test result of 'positive' received from the National Veterinary Service Laboratories of the United States Department of Agriculture."

2. The definition of "exposed" contained at §65.90(9) of the emergency CWD breeder rules did not contemplate situations in which the department is able to determine that although a deer might otherwise be considered "exposed" to CWD, the department is able, through an epidemiological investigation, to determine that a deer is, in fact, not exposed. For example, if a deer was transferred out of a breeding facility prior to a CWD-positive deer being transferred into the facility, the department may be able to determine that the deer transferred out of the facility was not exposed to CWD. The ability to determine that a deer is not, in fact, an exposed deer is important because a facility that accepts an exposed deer becomes a "Tier 1" facility, triggering provisions that not only affect that facility, but all the facilities that received deer from the facility. Therefore, the definition of "exposed" in new §65.90(10) has been altered to allow the department to truncate the trace-back of deer movements in a facility in cases where an epidemiological investigation reveals the trace-back is not necessary.

3. The definition of "Tier 1" contained at §65.90(20) of the emergency CWD breeder rules did not contemplate situations in which a facility that received exposed deer might be able to satisfy testing requirements to become eligible to move deer, but would still be prohibited from doing so by being subject to a TAHC hold order. Therefore, new §65.90(21) stipulates that a Tier 1 facility remains a Tier 1 facility if it is under a TAHC hold order.

4. Section 65.91(i) of the emergency CWD breeder rules provided that a person who is subject to the provisions of the emergency CWD breeder rules is required to comply with the provisions of TAHC regulations at 4 TAC Chapter 40 (relating to Chronic Wasting Disease) that are applicable to white-tailed or mule deer. As worded, the provision inadvertently excludes deer released prior the effective date of the emergency CWD breeder rules, because such deer have been liberated and are not possessed under the provisions of the rules. Therefore, new §65.91(i) has been reworded to apply also to persons who receive deer for liberation.

5. New §65.93(a)(5) provides that if the owner of a release site does not comply with the CWD testing requirements, the release site is ineligible to be a destination for future releases. The emergency CWD breeder rules included a five-year timeframe for ineligibility. The five-year time frame for ineligibility is not included in the new rules.

6. The emergency CWD breeder rules contained specific dates necessary to accommodate the immediate application of the emergency CWD breeder rules. The new rules eliminate those dates where necessary and replace them with generic language.

New §65.90, concerning Definitions, sets forth the meanings of specialized words and terms in order to eliminate ambiguity and enhance compliance and enforcement.

New §65.90(1) defines "accredited testing facility" as "a laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for CWD." The definition is necessary in order to provide a standard for testing facilities.

New §65.90(2) defines "breeder deer" as "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." The definition is necessary to establish a shorthand term for a phrase that is used frequently in the new rules but cumbersome to repeat.

New §65.90(3) defines "confirmed" as "a CWD test result of 'positive' received from the National Veterinary Service Laboratories (NVSL) of the United States Department of Agriculture." The definition is necessary in order to provide a definitive standard for asserting the presence of CWD in a sample. Samples collected from breeder deer are sent initially to an accredited testing facility, such as the Texas Veterinary Medical Diagnostic Laboratory (TVMDL). A test result of "suspect" is returned when CWD is detected, and a tissue sample is forwarded to the NVSL for confirmation.

New §65.90(4) defines "CWD" as "chronic wasting disease." The definition is necessary to provide an acronym for a term that is used repeatedly in the rules.

New §65.90(5) defines "CWD-positive facility" as "a facility where CWD has been confirmed." The definition is necessary because the 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.

New §65.90(6) defines "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 new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the new rules but cumbersome to repeat.

New §65.90(7) defines "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 new rules, the definition is necessary to establish a shorthand term for a phrase that is used frequently in the new rules but cumbersome to repeat.

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

New §65.90(9) defines "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 rules require CWD testing of eligible mortalities. CWD is difficult to detect in deer younger than 16 months of age, and more difficult 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 in their CWD herd certification program that requires testing 100 percent of eligible mortalities.

New §65.90(10) defines "exposed deer." This 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(11) 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 rules in some instances require deer harvested by hunters (as opposed to other types of mortality) to be tested for CWD.

New §65.90(12) 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 from TC 2 and/or TC 3 breeding facilities.

New §65.90(13) defines "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 new §65.90(12).

New §65.90(14) 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 breeder deer released from TC 3 breeding facilities to be tagged with either a RFID or NUES tag.

New §65.90(15) defines "originating facility" as "a facility that is the source facility identified on a transfer permit." The definition is necessary because the new rules allow breeder deer to be transferred between deer breeders and from deer breeders to release sites, making it necessary to distinguish the originating facility from the facility that received the deer.

New §65.90(16) 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 rules require a deer breeder to have a reconciled herd in order to transfer or release breeder deer.

New §65.90(17) defines "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 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 breeding facilities.

New §65.90(18) 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.

New §65.90(19) 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 breeder deer released from TC 3 breeding facilities be tagged with either an RFID or NUES tag.

New §65.90(20) defines "status" as "the level of testing performed or required by a deer breeding facility or a release site pursuant to this division." 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 rules categorize breeding facilities and release sites based on relative risk. The definition is necessary because the new rules predicate the eligibility of deer breeding facilities to transfer and receive breeder deer, and the testing requirements of release sites, upon the status of the breeding facility or release site.

New §65.90(21) defines "Tier 1 facility" as "any facility registered in TWIMS that (A) has 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) has not been released from a TAHC hold order related to activity described in subparagraph (A) of this paragraph." The definition is necessary to offer a shorthand reference to those facilities that have a direct connection to a CWD-positive facility.

New §65.90(22) defines "TAHC" as "Texas Animal Health Commission." The Texas Animal Health Commission is the state agency charged with managing "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).

New §65.90(23) 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(24) defines "TAHC Herd Plan" as "a set of requirements for disease testing and management developed by TAHC for a specific facility." 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(25) defines "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.

New §65.91, concerning General Provisions, sets forth a number of provisions that are applicable to the transfer or release of breeder 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, the new rules would apply. Because of the need to quickly implement a regulatory response to the emergence of CWD there is insufficient time to harmonize the new rules with the agency's existing rules governing white-tailed deer and mule deer. Therefore, the new rules clarify that the new rules govern in the event of conflict.