To achieve or maintain MQ status under current rules, a facility must have achieved "fifth-year" or "certified" status in the TAHC CWD Herd Certification Program, or provide valid test results of "not detected" for at least 80 percent of the total number of eligible mortalities that occurred in the breeding facility in each reporting year. The department recognizes that if a breeding facility has an unusually low number of eligible mortalities, the requirement to submit post-mortem tests for 80 percent of all eligible mortalities during the year could result in a lower number of post-mortem tests than necessary to achieve adequate CWD surveillance. Therefore, a minimum number of post-mortem tests to be submitted each report year is required. That number is calculated as the sum of the eligible-aged population in the breeding facility at the end of each reporting year, plus the sum of the eligible mortalities that have occurred within the breeding facility during the previous reporting year, multiplied by 3.6 percent. To develop this number, the department considered, based on mortality data required to be reported by permittees, that the average natural mortality in a deer breeding facility was 4.5 percent of the eligible-aged deer population in the breeding facility each year. Therefore, if a deer 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. This formula was developed with stakeholder input and was intended to create the least burdensome regulatory footprint possible.

Under current rule, when CWD is detected in a facility (a "positive facility"), that facility is immediately prohibited from transferring deer and the department and TAHC staff immediately begin epidemiological investigations to determine the extent and significance of possible disease transmission. Epidemiologically connected facilities, both trace in and trace out, identified by the department and TAHC are subject to quarantines (for positive facilities) and hold orders (for trace facilities) issued by TAHC. Current rule prohibits the transfer of deer to or from a facility if the transfer is prohibited by a TAHC herd plan associated with a quarantine or hold order.

With respect to the most recent detections in 2021 (necessitating the emergency action currently in effect), department records indicate that within the last five years, the seven positive facilities referenced earlier transferred a total of 2,525 deer to 138 deer breeding facilities and 118 release sites located in a total of 92 counties. These breeding facilities and release sites are therefore directly connected to at least one of the positive facilities and by current rule were designated "not movement qualified" (NMQ), which prohibits the transfer of deer. As a result of the ongoing epidemiological investigation and pursuant to existing regulations, 114 of the 138 directly connected breeding facilities have regained movement qualified status if otherwise eligible, leaving 24 facilities of epidemiological concern. An additional 214 deer breeding facilities received deer from one or more of those 72 directly connected breeding facilities; these facilities are indirectly connected to the positive facilities and are or were of epidemiological concern because it is possible that within the last five years any or all of them could have received CWD-infected deer. The five-year window is important because (based on the literature) it encompasses the time period from possible exposure to CWD, through the incubation period, to the time at which the disease can be transmitted to another animal or the environment. As a result of the ongoing epidemiological investigation and pursuant to existing emergency regulations, 185 of the 214 indirectly connected breeding facilities have regained movement qualified status if otherwise eligible, leaving 29 indirectly connected indirectly connected facilities of epidemiological concern.

The current comprehensive rules do not address disease response with respect to indirectly connected facilities (facilities that receive deer that were in the same facility with an exposed deer prior to being transferred to another facility). As noted previously, the recent discovery of CWD in seven more breeding facilities and the resultant extended network of epidemiological connectivity necessitated the adoption of an emergency rule on June 22, 2021 (46 TexReg 3993), which addressed the situation by imposing requirements for disease testing and movement of breeder deer to and from indirectly connected facilities. In addition, the emergency rule requires ante-mortem testing of all test-eligible deer prior to transfer to a release site. The department and TAHC have continued to conduct epidemiological investigations and this rulemaking is intended to implement the pertinent provisions of the emergency rule by way of the normal administrative process, including a minimum 30-day public comment opportunity.

The 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 rules implement a more rigorous testing protocol within certain deer breeding facilities and at release sites than was previously required. The rules allow for MQ deer breeders to continue to move and release breeder deer. The rules as adopted continue the existing extensive cooperation between the department and TAHC and the continued involvement of various stakeholder groups and interested parties.

The department notes that several types of alterations are made repeatedly in the amendments. Throughout Subchapter B there are references and provisions relating to "transfer category" and release-site "classes." Those terms reflect a regulatory structure that is no longer necessary because the current rules have been in place long enough that the distinctions they represent no longer exist. The amendments eliminate references to and provisions regarding those distinctions throughout the subchapter. The only distinction with respect to risk management at this time is MQ versus NMQ.

Similarly, the amendments and new section replace references to TAHC herd plans with the term "herd plan" in order to reflect the interagency cooperation between the department and TAHC. Those changes are also made throughout the rules.

In general, the amendments to sections within Division 1 comport the contents of that division with amendments to Division 2. The sections within Division 1 provide a regulatory structure for the creation of CWD management zones within which special provisions apply to the movement of live deer under department permits and deer carcasses following harvest by hunters.

The amendment to §65.80, concerning Definitions, eliminate definitions for terms that are no longer used in the rules and add a definition of "herd plan" to comport the division with changes adopted in Division 2.

The amendment to §65.88, concerning Deer Carcass Movement Restrictions, inserts clarifying language in subsection (b)(4) to emphasize that skull plates must be cleaned of internal soft tissue.

The terms "eligible mortality" and "adult deer" are being removed because those terms are artifacts of previous iterations of the rules and the current zone rules no longer employ them, as all CWD testing requirements are now contained in Division 2. The amendment defines "herd plan" as "a set of requirements for disease testing and management developed by the department and TAHC for a specific facility." Elsewhere in this rulemaking, the department eliminates specific references to TAHC herd plans and replaces them with generic references to herd plans to reflect the fact that herd plans are jointly developed by the department and TAHC.

As noted earlier in this preamble, the amendments remove references to the terms "transfer category," "release category," and various provisions associated with those terms throughout the division. The amendments to Division 2 implement an improved methodology for determining the risk of deer breeding facilities with respect to the spread of CWD by conditioning movement restrictions solely on MQ status, which makes the concepts of transfer category and release site class unnecessary. The amendment also references the provisions of new §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, where necessary, to preserve current limitations on deer movement to and from deer breeding facilities determined to present the highest risk of spreading CWD (currently referred to as "TC 3" facilities). The amendments also make nonsubstantive housekeeping-type changes in the interest of clarity and organization.

The amendments and new section within Division 2 incorporate the provisions of the current emergency rule in effect and comport the existing provisions of the division accordingly, with exceptions as noted.

The amendment to §65.90, concerning Definitions, eliminates definitions for "eligible-aged deer" "eligible mortality," "Interim Breeder Rules," "NUES tag," "originating facility," "status," "TAHC Herd Certification Program," and "TAHC Herd Plan," adds definitions for "exposure," "herd plan," "inconclusive," "insufficient follicles," "last known exposure," "release," "test-eligible," "Tier 1 facility," "trace deer," and "trace-out breeding facility," and modifies the definitions for "confirmed," "CWD-positive facility," "exposed deer," and "reconciled herd."

The definition of "eligible-aged deer" is being eliminated because the amendment replaces it with a new definition for "test-eligible."

The definition of "eligible mortality" is being eliminated because the term is no longer used in the rules.

The definition of "Interim Breeder Rules" is being eliminated because it existed only to provide a point of reference for the transition from a previous set of rules intended to contain and manage CWD in breeding facilities to the current rules implementing a comprehensive CWD management plan.

The definition of "NUES tag" is being eliminated because the retention and visibility of NUES tags is suboptimal.

The definition of "originating facility" is being eliminated because the rules eliminate the current structure based on transfer and release status assigned to individual breeding and release facilities based on their comparative risk of spreading CWD; thus, the term is no longer used and is therefore unnecessary.

The definition of "status" is being eliminated because the term no longer has a specific meaning in the context of transfer and release facility designations.

The definitions of "TAHC CWD Herd Certification Program" and "TAHC herd plan" are being eliminated because the rules acknowledge the cooperative nature of interagency planning and resource management activities between the department and the TAHC and the reality that the repeated emergence of CWD in deer breeding facilities has created operational stressors necessitating a shared burden in the development of plans for individual breeding facilities.

The amendment defines "exposure" as "the period of time that has elapsed following the introduction of an exposed deer to a breeding facility." Because individual deer that have been exposed to CWD can incubate the disease at different rates, it is epidemiologically critical to establish a timeline to determine the highest likelihood of early detection of the disease if it is present.

The amendment defines "inconclusive" as "a test result that is neither "positive" nor "not detected" on the basis of clinical deficiency." Current rules allow for the restoration of MQ status in certain situations on the basis of ante-mortem testing of an entire captive herd. Due to a number of factors, not all test samples are sufficient to test for CWD. The department acknowledges that fact; therefore, the rules as adopted allow a certain percentage of test results to be inconclusive without jeopardizing the adequacy of surveillance. The most common cause of inconclusive test results is the failure of a sample to contain enough lymphoid follicles to produce a reliable test result, referred to as a result of "insufficient follicles." Therefore, the amendment includes a definition of "insufficient follicles" for clarity's sake. The term is defined as "a test result indicating that a tonsil or rectal biopsy sample contained an insufficient number of lymphoid follicles to produce a valid test result."

The amendment defines "last known exposure" as "the last date a deer in a trace-out breeding facility was exposed to a trace deer prior to the death or transfer of that trace deer." The definition is necessary because the CWD testing requirements imposed by new §65.99 are predicated upon the length of time since an exposed deer was in a facility.

The amendment defines "release" as "the act of liberating a deer from captivity. For the purposes of this division the terms "release" and "liberate" are synonymous." The definition is necessary because Parks and Wildlife Code, Chapter 43, Subchapter L uses the terms "release" and "liberation" interchangeably and the department intends to provide a definitive affirmation that the two terms are indeed synonymous.

The amendment defines "test-eligible" as "a deer at least 16 months of age prior to the effective date of the rules and following the effective date of the rules, a deer at least 12 months of age." The rules lower the minimum age at which deer may be tested; however, that change will take place during the reporting year. The definition is necessary to make that clear.

The amendment defines "Tier 1 facility" as "a breeding facility that has received an exposed deer that was in a trace-out breeding facility." The definition is necessary to acknowledge the epidemiological importance of exposed deer that were received indirectly via a Category A or Category B trace-out breeding facility.

The amendment defines "trace deer" as "a deer that the department has determined had been in a CWD-positive deer breeding facility on or after the date the facility was first exposed to CWD, if known; otherwise, within the previous five years from the reported mortality date of the CWD-positive deer, or the date of the positive ante-mortem test result." The definition is necessary because new §65.99 creates testing requirements for breeding facilities that have received deer epidemiologically connected to a positive facility.

The amendment defines "trace-out breeding facility" as "a breeding facility that has received an exposed deer that was in a CWD-positive deer breeding facility." The definition is necessary because new §65.99 creates testing requirements for breeding facilities that have received deer directly from a positive facility.

The amendment alters the definition of "confirmed" to include the Texas A&M Veterinary Medical Diagnostic Laboratory as a testing authority.

The amendment alters the definition of "CWD-positive facility" to include the term "positive facility" in order to reduce the repetition of an unwieldy term throughout the rules.

The amendment replaces the definition of "exposed deer" with a more nuanced definition that reflects the provisions of the emergency rule currently in effect that are incorporated in Division 2 by this rulemaking. The new definition is based on the importance of determining the extent to which any given deer breeding facility is epidemiologically connected to facilities where CWD is known to exist, which in turn determines the CWD testing requirements necessary to both determine the epidemiological status of the facility and the nature and extent of CWD testing necessary to allow the resumption of transfers by the facility. The current definition states that an exposed deer is a deer that is in a CWD-positive facility or was in a CWD-positive facility within five years prior to the discovery of CWD in that facility. The new definition identifies an exposed deer as a deer meeting any of three criteria: the deer is or was in a breeding facility after the date that the facility held a CWD-positive deer, the deer is or was in a facility within five years preceding the discovery of a CWD-positive deer that was in the same facility, or the deer is in a facility as of a determination that either of the first two conditions exists with respect to a given facility. The definition is based on the epidemiological need to characterize the potential of any given breeder deer to have been in any facility where the possibility of contracting CWD could have existed.

The amendment to §65.91, concerning General Provisions, eliminates current subsections (e) and (f) because they relate to the transfer categories and release site classes of the current rule as discussed earlier in this preamble. The amendment also conforms language regarding herd plans as discussed previously and makes nonsubstantive housekeeping-type changes to standardize terminology (i.e., replacing phrases such as "introduce into or remove from" with "transfer," which means the same thing).