ENV-42-11-00023-P To Amend Part 189 Related to the Discovery of Chronic Wasting Disease in Deer in Maryland

10/19/11 N.Y. St. Reg. ENV-42-11-00023-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 42

October 19, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-42-11-00023-P

To Amend Part 189 Related to the Discovery of Chronic Wasting Disease in Deer in Maryland

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of Part 189 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 3-0301, 11-0325, 11-1905 and 27-0703

Subject:

To amend Part 189 related to the discovery of chronic wasting disease in deer in Maryland.

Purpose:

To prevent importation chronic wasting disease infectious material from the State of Maryland into New York.

Text of proposed rule:

Subparagraph 189.3 (e)(1)(i) is amended to read as follows:

(i) United States: Alabama, Connecticut, Delaware, Florida, Georgia, Kentucky, Maine, [Maryland,] Massachusetts, Mississippi, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Vermont.

Text of proposed rule and any required statements and analyses may be obtained from:

Patrick Martin, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4750, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

A negative declaration has been prepared pursuant to Article 8 of the Environmental Conservation Law and is on file with the department.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Regulatory Impact Statement

Statutory authority:

The Commissioner of the Department of Environmental Conservation (department), pursuant to Environmental Conservation Law (ECL) section 3-0301, has authority to protect the wildlife resources of New York State.

ECL section 11-0325 provides the authority to take action necessary to protect fish and wildlife from dangerous diseases. Where a disease is a threat to livestock, as well as to the fish and wildlife populations of the State, ECL section 11-0325 requires the department consult the Department of Agriculture and Markets. If the department and the Department of Agriculture and Markets jointly determine that a disease, which endangers the health and welfare of fish or wildlife populations, or of domestic livestock, exists in any area of the state or is in imminent danger of being introduced into the state, the department is authorized to adopt measures or regulations necessary to prevent the introduction or spread of such disease.

ECL section 11-1905 provides the department with authority to regulate the possession, propagation, transportation and sale of captive-bred white-tailed deer.

ECL section 27-0703 provides the department with authority to regulate the disposal of solid waste.

Legislative objectives:

The legislative objective of ECL section 3-0301 is to grant the Commissioner the powers necessary for the department to protect New York's natural resources, including wildlife, in accordance with the environmental policy of the State.

The legislative objective of ECL section 11-0325 is to provide the department with broad authority to respond to the presence or threat of a disease that endangers the health or welfare of fish or wildlife populations. In addition, this section provides for collaboration between the Department and the Department of Agriculture and Markets when such disease also poses a threat to livestock.

The legislative objective of ECL section 11-1905 is to provide the department with authority to regulate the captive-bred white-tailed deer population in New York.

The legislative objective of ECL section 27-0703 is to provide the department with authority to regulate the disposal of solid waste.

Needs and benefits:

This rule making is in response to the recent discovery of chronic wasting disease (CWD) in white-tailed deer in Maryland. CWD is an infectious neurological disease of cervids, the family which includes deer, elk and moose. CWD is a transmissible spongiform encephalopathy, and is a progressively fatal disease with no known immunity, vaccine or treatment. Management of CWD is further complicated by the fact that it is a poorly understood disease with clinical signs not apparent for at least 18 months following exposure and an unknown mode of transmission.

This rule making is necessary to protect New York's white-tailed deer herd from CWD by preventing the importation of CWD infectious materials into New York from newly identified sources. Prior to the recent discovery of CWD in Maryland, CWD regulations were adopted by the department and the Department of Agriculture and Markets in an effort to prevent CWD from entering the State from outside sources, but those regulations did not include Maryland because this state was not a known source of CWD at that time. With the discovery of CWD in white-tailed deer in Maryland, amendment of 6 NYCRR Part 189 is necessary to prevent importation of CWD infectious materials from this new source.

The rule making will place restrictions on the importation of wild deer carcasses and parts from Maryland.

The white-tailed deer herd in New York is estimated to be approximately 900,000 animals. In 2010, over 560,000 licenses were sold to hunt white-tailed deer in New York, resulting in expenditures by hunters and for hunting related activities of approximately $8,000,000 dollars.

Costs:

This rule making could result in additional costs to hunters who must process deer taken in Maryland prior to importing it into New York.

Local government mandates:

The proposed rule does not impose any mandates on local government.

Paperwork:

The proposed rule does not impose any additional record keeping.

Duplication:

The proposed amendment does not duplicate any state or federal requirement.

Alternatives:

No Action: The department has rejected this option. Failing to act to prevent the importation of CWD infectious material could allow the disease to become established in New York State. CWD has not been found in New York for over five years. The spread of CWD could compromise the health of New York's white-tailed deer herd and could have significant economic impacts on commercial and recreational activities associated with white-tailed deer.

Federal standards:

The United States Department of Agriculture-Animal and Plant Health Inspection Service (USDA-APHIS) developed an Environmental Assessment (EA) in 2002. The EA outlined the role of the federal government in CWD management. This role included providing coordination and assistance with research, surveillance, disease management, diagnostic testing, technology, communications, information dissemination, education and funding for State CWD Programs. At this time, there are no federal standards governing management of deer, moose or elk.

Compliance schedule:

Compliance will be required upon adoption of the final rule.

Regulatory Flexibility Analysis

1. Effect of Rule:

The proposed regulation is necessary to protect the white-tailed deer population in New York State from Chronic Wasting Disease (CWD). The white-tailed deer is a very important natural resource to small businesses and local governments in New York. The purpose of the new regulation is to protect this resource so that New Yorkers may continue to enjoy viewing deer, and benefit from deer hunting, and the positive economic and social effects of deer and deer hunting.

Under the proposed regulations, Maryland will be dropped from the list of states exempt for the importation restrictions. All CWD positive states are subject to the same importation restrictions. Although this will impact New York residents who may hunt in Maryland and plan to return to New York with whole carcasses of the deer they harvest, it is anticipated that this will effect relatively few hunters and, with some advanced planning, hunters can easily comply with these regulations without losing hunting opportunity.

No local governments will be affected by this rule.

2. Compliance Requirements:

Resident hunters who harvest a deer in Maryland will be required to remove specific parts from the animal before bringing it into New York.

3. Professional Services:

The rule will not require local governments or small businesses to engage professional services to comply with this rule.

4. Compliance Costs:

Some successful hunters will be required to pay for the processing of their harvested deer before returning to the State. Most hunters who hunt in the CWD restricted states have their harvested game processed before they return as a matter of course.

5. Economic and Technological Feasibility:

There is no economic or technological affect on local governments or small businesses. The rule will not require any technological changes or capital expenditures to comply with the new regulation.

6. Minimizing Adverse Impact:

As the serious nature of CWD is explained to the public, the new restrictions are likely to be accepted as reasonable and balanced. The Department of Environmental Conservation (department) strongly supports continued research on CWD to understand the modes of transmission, and associated risk variables. As new information becomes available, the department will adjust regulations in response to new data or findings.

7. Small Business and Local Government Participation:

When CWD was first confirmed, the department held public meetings to explain the nature of the disease and the department’s initial response. Since early April 2005, the department has issued press releases to continue to inform the public of developments and findings relative to the CWD monitoring program. Similarly, as the department establishes appropriate and necessary regulations to contain the disease outreach to affected stakeholders (businesses and local governments) will be done so that the importance of the new regulations is understood.

Rural Area Flexibility Analysis

This rule making is in response to the recent discovery of chronic wasting disease (CWD) in white-tailed deer in Maryland. CWD is an infectious neurological disease of cervids, the family which includes deer, elk and moose. CWD is a transmissible spongiform encephalopathy, and is a progressively fatal disease with no known immunity, vaccine or treatment. Management of CWD is further complicated by the fact that it is a poorly understood disease with clinical signs not apparent for at least 18 months following exposure and an unknown mode of transmission.

This rule making is necessary to protect New York State's white-tailed deer herd from CWD by preventing the importation of CWD infectious materials into New York from newly identified sources. Prior to the recent discoveries of CWD in white-tailed deer in Maryland, CWD regulations were adopted by the Department of Environmental Conservation (department) and the Department of Agriculture and Markets in an effort to prevent CWD from entering the state from outside sources, but those regulations did not include Maryland because CWD was not found in Maryland. With the discovery of CWD in white-tailed deer in Maryland, amendment of 6 NYCRR Part 189 is necessary to prevent importation of potentially infectious materials from this new sources.

This rule making is directed at the importation of certain animal parts into New York from the State of Maryland. It does not have any direct impacts on rural areas or entities therein. Therefore, the department has determined that this rule making will not have any adverse impacts on rural areas. In fact, the rule making will have a positive impact on rural areas by preventing the importation of CWD infectious materials and the introduction of CWD to new areas of the state. The department has further determined that this rule will not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Therefore, a rural area flexibility analysis is not required for this rule making.

Job Impact Statement

This rule making is necessary to protect New York States's white-tailed deer herd from Chronic Wasting Disease (CWD) by preventing the importation of CWD infectious materials into New York from the State of Maryland. In 2011, CWD was found in white-tailed deer in the State of Maryland.

The Department of Environmental Conservation (department) has determined that this rule making will not have a substantial adverse impact on jobs and employment opportunities, and that by its nature and purpose (protecting the New York State white-tailed deer resource), the proposed rule will protect jobs and employment opportunities. Therefore, the department has determined that a job impact statement is not required.