Proposed new §65.90(11) would define "eligible-aged deer" as "if the deer is held in a breeding facility enrolled in the TAHC CWD Herd Certification Program, 12 months of age or older or for any other deer, 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 USDA use a standard of 12 months.

Proposed new §65.90(12) would define "eligible mortality" as "an eligible-aged deer that has died." The proposed new rules stipulate CWD testing requirements. As mentioned earlier, CWD is difficult to detect in younger animals; therefore, the proposed new rules would require that all deer tested be of eligible age.

Proposed new §65.90(13) would define "exposed deer." This definition would replace the former definition for "Tier 1," which proved to be easily confused with other terms such as "TC 1." The 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(14) would define "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 proposed new rules apply, rather than having to enumerate a cumbersome list of sites.

Proposed new §65.90(15) 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(16) would define "hunting year." Because the proposed new rules would 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 Managed Lands Deer Permits; therefore, "hunting year" would be 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)."

Proposed new §65.90(17) 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(18) 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(17).

Proposed new §65.90(19) would define "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 proposed new rules would in certain circumstances require the testing of hunter-harvested deer that could be identified as breeder deer that had been liberated.

Proposed new §65.90(20) would define "Movement Qualified (MQ)." Because the proposed new rules require deer breeding facilities to maintain a minimum level of testing over specified time period in order to be authorized by the department to transfer breeder deer to other deer breeders or for purposes of release, it is necessary to create a shorthand term to reference that ability. Therefore, "Movement Qualified (MQ)" would be defined as "a designation made by the department pursuant to this division that allows a deer breeder to lawfully transfer breeder deer."

Proposed new §65.90(21) would define "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 proposed new rules would prohibit the movement of deer from any facility that is not MQ, a definition for that condition is necessary.

Proposed new §65.90(22) 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 certain breeder deer and Triple T deer released to a release site to be tagged with either a RFID or NUES tag.

Proposed new §65.90(23) would define "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.

Proposed new §65.90(24) would define "post-mortem test" as "a CWD test performed on a dead deer," which is necessary in order to delineate the situations in which the proposed new rules require post-mortem testing as opposed to ante-mortem testing.

Proposed new §65.90(25) would define "properly executed." Because the proposed new rules would 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 proposed new rules would define "properly executed" as "a form or report required by this division on which all required information has been entered."

Proposed new §65.90(26) 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(27) would define "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 proposed new rules impose CWD testing and other requirements for certain tracts of land where breeder deer are liberated or transferred.

Proposed new §65.90(28) 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(29) 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 certain breeder deer and Triple T deer released to release sites to be tagged with either an RFID or NUES tag.

Proposed new §65.90(30) 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 new rules categorize breeding facilities and release sites based on relative risk. The definition is necessary because the proposed new rules include regulatory requirements that are predicated upon the status of a breeding facility or release site.

Proposed new §65.90(31) would define "submit." In order to eliminate lengthy repetition throughout the proposed 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."

Proposed new §65.90(32) would define "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. Because the proposed new rules would 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" would be defined as "an initial CWD test result of "detected" that has not been confirmed."

Proposed new §65.90(33) would define "TAHC" as "Texas Animal Health Commission."

Proposed new §65.90(34) 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(35) 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(36) would define "Test, Test Result(s), or Test Requirement" as "a CWD test, CWD test result or CWD test requirement as provided in this division," for the same reasons described in the explanation of the definition for "submit."

Proposed new §65.90(37) would define "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 proposed new rules would impose testing and reporting requirements on trap sites under various permits.

Proposed new §65.90(38) would define "Triple T permit." Because the proposed new rules would 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 proposed new rules, a reference to Triple T permit is limited to a Triple T permit for activities involving white-tailed and mule deer.

Proposed new §65.90(39) would define "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.

Proposed new §65.90(40) 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 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. In order to avoid confusion resulting from a conflict between regulations, 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 or deer trapped under a Triple T permit, TTP permit or DMP for any purpose except as provided by the proposed 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.

Proposed new §65.91(c) would prohibit 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 and would stipulate that such prohibition would take effect immediately upon the notification of a CWD "suspect" test result and continue in effect until the department expressly authorizes the resumption of permitted activities at that facility. The proposed new provision is necessary because CWD is an infectious disease, which makes it necessary to prohibit certain activities in order to contain the potential spread of the disease while test results are confirmed.

Proposed new §65.91(d) would provide 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)(1)(D) of this title (relating to Movement of Breeder Deer). 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 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 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, and would stipulate a duration for the application of continued testing requirements.

Proposed new §65.91(e) would provide that a deer breeding facility that was initially permitted after March 31, 2016, will assume the lowest status among all originating facilities from which deer are received. The proposed new subsection is necessary for the same reasons addressed in the discussion of proposed new §65.91(d).

Proposed new §65.91(f) would provide that the designation of status by the department in and of itself does not authorize the transfer or movement of deer and prohibit any person from removing or causing the removal of deer from a facility that has been designated NMQ by the department. The provision is necessary because a breeding facility of any status can be designated NMQ.

Proposed new §65.91(g) would require all applications, notifications, and requests for change in status required by this division shall be submitted electronically via TWIMS or by another method expressly authorized by the department. To provide greater regulatory efficiency, it is necessary to require the use of an automated system.

Proposed new §65.91(h) would provide that in the event that technical or other circumstances prevent the development or implementation of automated methods for collecting and submitting the data required by this division via TWIMS, the department may prescribe alternative methods for collecting and submitting the data required by this division, which is necessary to provide for continuity of administration in the event of technical disruptions.

CWD Testing

Proposed new §65.92, concerning CWD Testing, would establish the general provisions regarding the collection and submission of CWD test samples.

Proposed new §65.92(a) would require all CWD test samples at the time of submission for testing to be accompanied by a properly executed, department-prescribed form provided for that purpose. The technical response being developed by the department would provide for the accredited laboratories that perform CWD testing notify the department of test results electronically. Requiring persons who submit test samples to those laboratories to use a department-supplied form that contains data fields that can be entered by the laboratory, the process of notification and the sharing of records is enhanced by eliminating the need for manual data entry by the department after the test results have been received.