ENV-46-14-00002-EP To Amend Part 189 Related to the Discovery of Chronic Wasting Disease in Deer in Ohio

11/19/14 N.Y. St. Reg. ENV-46-14-00002-EP

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 46

November 19, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-46-14-00002-EP

Filing No. 921

Filing Date. Oct. 31, 2014

Effective Date. Oct. 31, 2014

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

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

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

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

On October 23, 2014 DEC was notified that Ohio confirmed its first case of chronic wasting disease (CWD). New York must ensure that no CWD-infected material is transported into the State and therefore needs to remove Ohio from the list of states that are allowed to export the carcasses of wild, CWD-susceptible cervids obtained or harvested from Ohio into New York unless those carcasses have certain parts removed before importation into New York.

Subject:

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

Purpose:

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

Text of emergency/proposed rule:

Title 6 of the Codes, Rules and Regulations of the State of New York, Part 189, Chronic Wasting Disease, is amended as follows:

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

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

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire January 28, 2015.

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

Patrick Martin, New York State Department of Environmental Conservation, 625 Broadway, Albany, New York 12233, [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.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. 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 to consult with 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. An interagency determination certified the presence of CWD effective April 1, 2005.

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

2. 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.

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.

3. Needs and benefits:

This rule making is in response to the recent discovery of chronic wasting disease (CWD) in white-tailed deer in Ohio. 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. In addition, CWD can be transmitted from animal to animal contact in the saliva, urine and feces and indirectly when the environment becomes contaminated with CWD infectious material and exposes wild deer, elk and moose.

This rule making is necessary to protect New York’s white-tailed deer herd and moose population from CWD by preventing the importation of CWD infectious materials into New York from newly identified sources. In 2013, the Department of Agriculture and Markets adopted regulations to prohibit the importation of captive CWD-susceptible cervids to prevent the importation of CWD. At this time, the importation of a CWD infected carcass from a hunter-killed animal is the most significant risk of CWD entering New York. With the discovery of CWD in white-tailed deer in Ohio, amendment of 6 NYCRR Part 189 is necessary to prevent importation of CWD infectious materials from this new source.

The rulemaking will place restrictions on the importation of wild deer carcasses and parts from Ohio.

The white-tailed deer herd in New York is estimated to be approximately 900,000 animals. In 2013, over 560,000 licenses were sold to hunt white-tailed deer in New York, resulting in expenditures by hunters and for hunting related retail sales, food and lodging, salaries and taxes of in excess of $1.50 Billion annually.

4. Costs:

This rule making could result in additional costs to hunters who must process a deer taken in Ohio to remove the most infectious parts prior to importing the meat into New York.

5. Local government mandates:

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

6. Paperwork:

The proposed rule does not impose any additional recordkeeping.

7. Duplication:

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

8. Alternatives:

The department could take no action, but has rejected this option. Failing to act to prevent the importation of CWD infectious material would allow the disease to become established in New York State. CWD has not been found in New York for over nine years. The spread of CWD would severely compromise the health of New York’s white-tailed deer herd and would have significant economic impacts on commercial and recreational activities associated with white-tailed deer for generations.

9. Federal standards:

The United States Department of Agriculture-Animal and Plant Health Inspection Service (USDA-APHIS) finalized an interim rule in 2012 that established a voluntary herd certification program to control the spread of CWD in farmed (captive) cervids. There are no federal rules or regulations to control the spread of CWD in deer, moose or elk existing in a wild state. It is the responsibility of the states to prevent the spread of CWD in wild deer, elk and moose populations.

10. 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 wild white-tailed deer and moose populations 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, Ohio will be dropped from the list of states that are exempt from the importation requirement to remove certain parts of the carcass known to harbor the CWD infectious material. All CWD positive states are subject to the same importation requirements. Although this will impact New York residents who may hunt in Ohio and plan to return to New York with field dressed carcasses of the deer, elk or moose they harvested in Ohio, it is anticipated that this will affect relatively few hunters and, with advanced planning, hunters can easily comply with these regulations without losing the opportunity to hunt in Ohio or without the ability to bring back the meat of the animal they harvested.

No local governments will be affected by this rule.

2. Compliance Requirements:

Resident hunters who harvest a deer in Ohio will be required to remove specific parts from the animal taken in Ohio before bringing it back 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:

Successful hunters in Ohio will be required to either pay for the processing of their harvested deer before returning to the State or process the harvested deer themselves. 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 effect 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:

CWD has been confirmed in a number of states and measures to prevent the movement of the disease are in place in all states that have wild CWD susceptible cervids. The affected public (deer, elk and moose hunters) are aware of the CWD restrictions and have accepted them 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 amend regulations in response to new data or findings to ensure that the best prevention measures are in place to protect the wild deer herd.

7. Small Business and Local Government Participation:

When CWD was first confirmed in New York in 2005, the department held public meetings to explain the nature of the disease, the threat that CWD posed to the wild deer herd and the department’s initial response. Since early April 2005, the department has issued press releases and posted CWD information to the department’s website to continue to inform the public of developments and findings relative to the department’s CWD surveillance program. Similarly, as the department establishes appropriate and necessary regulations to prevent the disease from entering New York, outreach to affected stakeholders (businesses and local governments) will be done so that the importance of the new regulations is understood.

8. Cure Period or Other Opportunity for Ameliorative Action:

Pursuant to SAPA 202-b (1-a)(b), no such cure period is included in the rule because of the potential adverse impact that CWD would have on the health of New York’s wild deer herd and moose population. Immediate compliance with this rule is necessary to prevent the introduction of this disease into New York State from Ohio. Compliance is also required to ensure that the general welfare of the public is protected.

Rural Area Flexibility Analysis

This rulemaking is directed at the importation of certain animal parts into New York from the State of Ohio. 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 rulemaking.

Job Impact Statement

This rule making is necessary to protect New York State’s wild white-tailed deer herd and moose population from Chronic Wasting Disease (CWD) by preventing the importation of CWD infectious materials into New York from the State of Ohio. In 2014, CWD was found in white-tailed deer in the State of Ohio.

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 and moose resources), the proposed rule will protect jobs and employment opportunities. Therefore, the department has determined that a job impact statement is not required.