(a) Notwithstanding any other provision of this division, a breeding facility is designated NMQ and is prohibited from transferring breeder deer anywhere for any purpose if the breeding facility:      
        (1) has not:                  (A) met the provisions of this subparagraph:                      (i) had less than five eligible mortalities from May 23, 2006 through March 31, 2016; or                       (ii) submitted CWD "not detected" test results for at least 20% of the total number of eligible mortalities that occurred in the facility since May 23, 2006; and                     (B) beginning with the reporting year that starts April 1, 2017, and ending March 31, 2022, submitted CWD "not detected" test results for:                      (i) at least 80% of test-eligible mortalities occurring in the facility during each reporting year before the effective date of this section; and                       (ii) 100 percent of test-eligible mortalities occurring in the facility after the effective date of this subsection; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the test-eligible deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by 3.6 percent; and                     (C) beginning with the reporting year that starts April 1, 2022 and for each reporting year thereafter, submitted CWD "not detected" test results for 100 percent of eligible mortalities occurring in the facility during the previous reporting year; provided, however, if the facility has been permitted for six months or more, the number of "not detected" test results submitted during the previous reporting year must be equal to or greater than the following number: the sum of the test-eligible deer reported in the breeding facility inventory on March 31 of the previous reporting year, plus the sum of the eligible mortalities that occurred within the breeding facility for the previous reporting year, multiplied by five percent;         
        (2) is not authorized pursuant to a herd plan associated with a TAHC hold order or TAHC quarantine;       
        (3) does not have a reconciled herd inventory; or       
        (4) is not in compliance with the reporting and recordkeeping provisions of this division and §65.608 of this title (relating to Annual Reports and Records).       
      (b) A breeding facility that has been designated as NMQ for failure to comply with the testing requirements specified in subsection (a) of this section will be restored to MQ:      
        (1) when the required "not detected" test results prescribed by subsection (a) of this section are submitted; or       
        (2) the department has designated the breeding facility MQ under the provisions of subsections (d), (e), or (f) of this section.       
      (c) A breeding facility designated NMQ shall report all mortalities within the facility to the department immediately upon discovery of the mortality.     
      (d) Notwithstanding the applicable provisions of §65.92 of this title (relating to CWD Testing), a breeding facility that is designated NMQ and is unable to satisfy the requirements of subsection (a) of this section to achieve MQ status may be designated MQ by the department, provided:      
        (1) the facility has not received any exposed deer;       
        (2) there are no discrepancies between the deer physically present in the facility (number, sex, age, unique identifier) and the herd inventory reported in TWIMS;       
        (3) the department has determined that the number of test-eligible deer in the facility is not sufficient to provide the necessary ante-mortem test samples to substitute for post-mortem test results;       
        (4) a department herd inventory inspection has been completed at least 12 months prior to the initiation of any ante-mortem testing under paragraph (5) of this subsection;       
        (5) all test-eligible deer in the facility are subjected to ante-mortem testing two times at an interval of not less than 12 months, beginning not less than 12 months from being designated NMQ, provided a deer that is not test-eligible when testing under this subsection begins but reaches test-eligible status during the 12-month interval stipulated by this paragraph is not required to be tested twice, but must be tested at least once during the 12-month interval stipulated by this paragraph. The test result must be "not detected"; and       
        (6) a test result of "not detected" for all tests required under paragraph (5) of this subsection is obtained and submitted for each test-eligible deer in the facility.       
      (e) The department may decline to designate a facility as MQ under subsection (d) of this section:      
        (1) if the department determines that a permittee has intentionally failed to test a test-eligible mortality; or       
        (2) upon the recommendation of a licensed veterinarian or epidemiologist employed by the department or TAHC. The recommendation must:                  (A) be in writing and articulate the specific rationale supporting the recommendation; and                   (B) may include specific additional testing protocols to be undertaken at the facility that the department considers to be acceptable for rectifying the epidemiological or veterinary deficiencies identified in the recommendation.         
      (f) Upon the successful completion of any additional testing requirements stipulated in the recommendation required by subsection (e) of this section, the department may designate a facility MQ.     
      (g) The department may deny permit renewal for any facility for which substitute ante-mortem test results are utilized for more than 30 percent of the required post-mortem test results, multiplied by five, pursuant to §65.92(d) of this title in more than two reporting years during the life of the permit. This paragraph does not apply to the use of ante-mortem test results to meet the provisions of subsection (a)(1)(C) of this section requiring that a minimum of five percent of the breeding facility inventory be tested annually.     
      (h) Deer required to be reported to the department under §65.605 of this title (relating to Holding Facility Standards and Care of Deer) are considered to be mortalities for the purposes of this division until lawfully recaptured. A deer that is not recaptured will be treated as a mortality that occurred within the facility from which the escape is required to be reported.     
      (i) Deer that according to department records should be present in a breeding facility but cannot be accounted for to the satisfaction of the department are considered to be mortalities for the purposes of this section.     
     Source Note:        The provisions of this §65.94 adopted to be effective August 15, 2016, 41 TexReg 5726; amended to be effective July 24, 2017, 42 TexReg 3643; amended to be effective June 5, 2019, 44 TexReg 2728; amended to be effective December 19, 2021, 46 TexReg 8724