PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 68.1, 68.2, 68.3, 68.5, 68.7 and 68.8 of Title 1 NYCRR.
Statutory authority:
Agriculture and Markets Law, sections 18, 72 and 74
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The rule prohibits the movement of cervids susceptible to CWD into New York State until August 1, 2018, except movements to a zoo accredited by the Association of Zoos and Aquariums. The rule also provides that prior to August 1, 2018, the Commissioner shall hold hearings to reevaluate the risk and impacts of allowing limited movement of CWD-susceptible cervids into New York State and if warranted, amend the rule to address changes in circumstances. Finally, the rule requires confinement and CWD testing for captive cervids within New York State. This is due to the further spread of CWD.
CWD, Chronic Wasting Disease, is a progressive, fatal, degenerative neurological disease of captive and free-ranging deer, elk, and moose (cervids) that was first recognized in 1967 as a clinical wasting syndrome of unknown cause in captive mule deer in Colorado. CWD belongs to the family of diseases known as transmissible spongiform encephalopathies (TSEs). The name derives from the pin-point size holes in brain tissue of infected animals which gives the tissue a sponge-like appearance. TSEs include a number of different diseases affecting animals and humans including bovine spongiform encephalopathy (BSE) in cattle, scrapie in sheep and goats and Creutzfeldt-Jacob disease (CJD) in humans. Although CWD shares certain features with other TSEs, it is a distinct disease affecting only deer, elk and moose. There is no known treatment or vaccine for CWD.
The origin of CWD is unknown. The agent that causes CWD and other TSEs has not been completely characterized. However, the theory supported by most scientists is that TSE diseases are caused by proteins called prions. The exact mechanism of transmission is unclear. However, evidence suggests that as an infectious and communicable disease, CWD is transmitted directly from one animal to another through saliva, feces, and urine containing abnormal prions shed in those body fluids and excretions. The species known to be susceptible to CWD are Rocky Mountain elk (Cervus canadensis), red deer (Cervus elaphus), mule deer (Odocoileus hemionus), black-tailed deer (Odocoileus hemionus), white-tailed deer (Odocoileus virginianus), sika deer (Cervus nippon), and moose (Alces alces).
CWD is a slow and progressive disease. Because the disease has a long incubation period (1 1/2 to 5 years), deer, elk and moose infected with CWD may not manifest any symptoms for a number of years after they become infected. As the disease progresses, deer, elk and moose with CWD show changes in behavior and appearance. These clinical signs may include progressive weight loss, stumbling, tremors, lack of coordination, excessive salivation and drooling, loss of appetite, excessive thirst and urination, listlessness, teeth grinding, abnormal head posture and drooping ears.
The United States Secretary of Agriculture declared CWD to be an emergency that threatens the livestock industry of the United States and authorized the United States Department of Agriculture to establish a CWD eradication program. This prompted the Department in 2004 to adopt regulations which allow for importation of captive cervids from states with confirmed cases of CWD under a health standard and permit system.
Nonetheless, 22 states, including New York, as well as two provinces in Canada have either CWD detections in free ranging deer or have cases of CWD diagnosed in captive deer. Most recently, in October of 2012, CWD was diagnosed in captive and wild deer in Pennsylvania. Given the proximity of this detection to New York and the apparent further spread of this disease throughout the country, the Department and the Department of Environmental Conservation (DEC) entered into a memorandum of understanding which restricts movement of captive cervids from these other states and the two Canadian provinces into New York State. However, since entities in these states and provinces can still access New York markets by moving deer to states not subject to the ban, it was decided that the best approach to protect New York’s deer population was to ban importation until August 1, 2018 of any captive cervids into the State except movements to a zoo accredited by the Association of Zoos and Aquariums.
The regulations are necessary to protect the general welfare, since the effective control of CWD will be accomplished with adoption of this regulation. By banning importation of captive cervids into New York State until August 1, 2018 and requiring confinement and CWD testing of captive deer, the rule will help safeguard animal health as well as protect New York’s 14 million dollar captive deer industry and the 780.5-million dollar wild deer hunting industry.
Based on the facts and circumstances set forth above, the Department has determined that the immediate adoption of these amendments is necessary for the preservation of the general welfare and that compliance with subdivision one of section 202 of the State Administrative Procedure Act would be contrary to the public interest.
Subject:
Captive cervids.
Purpose:
To prevent the further spread of chronic wasting disease in New York State.
Text of emergency rule:
Subdivision (f) of section 68.1 of 1 NYCRR is repealed and a new subdivision (f) of section 68.1 of 1 NYCRR is added to read as follows:
(f) CWD infected zone means:
(1) any state which has had a diagnosed case of CWD in captive or wild cervids within the past 60 months;
(2) any part of a state which is within 50 miles of a site in another state where CWD has been diagnosed in captive or wild cervids within the past 60 months; or
(3) any area designated by the Commissioner as having a high risk of CWD contamination.
Subdivision (r) of section 68.1 of 1 NYCRR is amended to read as follows:
(r) Official identification means a unique form of individual animal identification approved by [the department] USDA/APHIS and the Department. Cervids in a herd under the Herd Certification Plan must have at least one eartag as one [to] of two means of animal identification.
Subdivision (c) of section 68.2 of 1 NYCRR is amended to read as follows:
(c) Movement of captive cervids. No person shall import, move or hold captive cervids into or within New York State except in compliance with the requirements of this Part. A valid certificate of veterinary inspection shall accompany all cervids imported into New York State, with the exception of those moving directly to slaughter. In addition, no person shall import or move captive cervids into the State or within the State for any purpose, including slaughter [and transit through New York State] unless a movement permit authorizing such movement has been obtained from the [d]Department prior to such movement. An application for a movement permit may be obtained by calling the [d]Department during normal business hours. The [d]Department will consult with the New York State Department of Environmental Conservation prior to the issuance of a movement permit. Except for cervids moving directly to slaughter, movement permits shall be issued only for captive cervids that meet the New York State animal health requirements for captive cervids of this Part. All cervids to be moved, other than cervids moving directly to slaughter, must have approved, unique and tamper evident identification prior to movement. The removal or alteration of any official form of animal identification without the prior permission of the [d]Department is prohibited.
Subdivisions (b) and (c) of section 68.3 of 1 NYCRR are repealed and a new subdivision (b) is added to read as follows:
(b) All movements of CWD susceptible cervids into New York State are prohibited until August 1, 2018, except movements to a zoo accredited by the Association of Zoos and Aquariums, 8403 Colesville Rd., Suite 710, Silver Spring, MD 20910-3314. No such movements shall be made unless approved prior to the movement by the commissioner or his/her designee in consultation with the New York Department of Environmental Conservation. Prior to August 1, 2018, the commissioner shall hold public hearings to reevaluate the risks and impacts of allowing limited movement of CWD susceptible cervids into New York from other states and propose amendments to this Part if needed to prevent the introduction of Chronic Wasting Disease into New York.
Subdivisions (d), (e), (f) and (g) of section 68.3 of 1 NYCRR are relettered subdivisions (c), (d), (e) and (f).
Subdivision (e) of section 68.3 of 1 NYCRR, as relettered subdivision (d), is amended to read as follows:
[(e)](d) Premises inspection required. All captive cervid facilities and perimeter fencing shall be inspected and approved by a State or Federal regulatory representative. The initial inspection shall be conducted prior to the addition of any cervids. Cervids may not be added to the premises prior to inspection and approval. For herds which are being enrolled in the CWD Herd Certification Program, physical restraint equipment adequate for the number of cervids to be held in the enclosure shall be in place before the herd is enrolled in the Program. Facilities and fencing shall be subject to inspection by State and Federal regulatory officials periodically thereafter in order to maintain program participant status.
Subdivision (a) of section 68.5 of 1 NYCRR is amended to read as follows:
(a) CWD monitored herd. All special purpose herds consisting of one or more CWD susceptible cervids shall participate in the CWD Monitored Herd Program if they are not participating in the CWD Certified Herd program. No live cervid sales or movements may be made from CWD monitored herds except as provided in this section. Live cervids may not be removed from the premises of a CWD monitored herd except for animals being shipped with a movement permit [for immediate slaughter at an approved facility].
Subparagrahs (i) and (iii) of paragraph (1) of subdivision (b) of section 68.5 of 1 NYCRR are amended to read as follows:
(i) submit for test appropriate CWD samples from all natural deaths of CWD susceptible cervids over [16] 12 months of age;
(iii) submit for test appropriate CWD samples from slaughter and/or harvested cervids so that the total number of cervids sampled on an annual basis (January 1st to December 31st) represents 10 percent or 30, whichever is less, of the total number of susceptible cervids over [16] 12 months within the herd as of March 31st. In no case shall the combined number of cervids sampled on an annual basis represent less than 10 percent (rounded [up] down to the next whole number) or 30, whichever is less, of the estimated susceptible test eligible herd population. Notwithstanding this Part, all natural deaths must be submitted for CWD diagnosis.
Paragraph (2) of subdivision (c) of section 68.5 of 1 NYCRR is repealed and a new paragraph (2) is added to read as follows:
(2) Additions to CWD monitored herds shall be permitted only if they originate from herds that have achieved CWD certified herd status or as provided in section 68.5(f) of this Part.
Paragraph 3 of subdivision (c) of section 68.5 of 1 NYCRR is repealed.
A new subdivision (f) of section 68.5 of 1 NYCRR is added to read as follows:
(f) Permitted removal of all susceptible species from a CWD Monitored herd.
Notwithstanding the provisions of this section, live cervid sales or movements may be made from CWD monitored herds if the owner has signed a herd dispersal agreement containing the following conditions:
(1) The owner agrees to remove all susceptible species from the property;
(2) A number of cervids as determined by the Commissioner shall be tested prior to the removal of live animals;
(3) A permit is obtained from the Department prior to any movement;
(4) All animals moved are individually identified with an approved identification tag;
(5) The receiving premises must be in a monitored herd program and the owner must agree to provide samples from the cervids within a timeframe as prescribed by the Commissioner; and
(6) The Commissioner may add any other conditions to the herd dispersal agreement as required to control CWD.
Section 68.7 of 1 NYCRR is repealed and section 68.8 of 1 NYCRR is renumbered section 68.7.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. AAM-44-13-00007-EP, Issue of October 30, 2013. The emergency rule will expire May 11, 2014.
Text of rule and any required statements and analyses may be obtained from:
Dr. David Smith, DVM, Director, Division of Animal Industry, NYS Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, (518) 457-3502, email: david.smith@agriculture.ny.gov
Regulatory Impact Statement
1. Statutory authority:
Section 18(6) of the Agriculture and Markets Law provides, in part, that the Commissioner may enact, amend and repeal necessary rules which shall provide generally for the exercise of the powers and performance of the duties of the Department.
Section 72 of the Law authorizes the Commissioner to adopt and enforce rules and regulations for the control, suppression or eradication of communicable diseases among domestic animals and to prevent the spread of infection and contagion.
Section 72 of the Law also provides that whenever any infectious or communicable disease affecting domestic animals shall exist or have recently existed outside this State, the Commissioner shall take measures to prevent such disease from being brought into the State.
Section 74 of the Law authorizes the Commissioner to adopt rules and regulations relating to the importation of domestic or feral animals into the State.
2. Legislative objectives:
The statutory provisions pursuant to which these regulations are proposed are aimed at preventing infectious or communicable diseases affecting domestic animals from being brought into the State and controlling, suppressing and eradicating such diseases and preventing the spread of infection and contagion. The Department’s proposed amendment of 1 NYCRR Part 68 will further this goal by helping prevent the spread of chronic wasting disease (CWD) in the State.
3. Needs and benefits:
This rule prohibits the movement of cervids susceptible to CWD into New York State until August 1, 2018, except movements to a zoo accredited by the Association of Zoos and Aquariums. The rule provides that prior to August 1, 2018, the Commissioner shall hold hearings to reevaluate the risk and impacts of allowing limited movement of CWD-susceptible cervids into New York State and if warranted, amend the rule to address changes in circumstances.
This rule also addresses the movement of captive cervids within New York State. This is necessary since in the last two years, four states, including Pennsylvania, have had CWD detections in captive cervids. It is believed that the positive finds may have come from contact with infected wild deer or infected deer which were illegally brought into the State from a state with CWD. In order to move captive cervids within New York State, the deer must have CWD monitored herd status. The rule implements requirements in order for a deer herd to have this status. Adequate physical restraint equipment must be used in order to keep the deer securely within an enclosure. Deer 12 months of age or older that die of natural causes must be tested for CWD. Finally, among deer 12 months of age or older, ten percent of the herd or 30 deer, whichever is less, must be tested annually for CWD.
CWD, Chronic Wasting Disease, is a progressive, fatal, degenerative neurological disease of captive and free-ranging deer, elk, and moose (cervids) that was first recognized in 1967 as a clinical wasting syndrome of unknown cause in captive mule deer in Colorado. CWD belongs to the family of diseases known as transmissible spongiform encephalopathies (TSEs). The name derives from the pin-point size holes in brain tissue of infected animals which gives the tissue a sponge-like appearance. TSEs include a number of different diseases affecting animals and humans including bovine spongiform encephalopathy (BSE) in cattle, scrapie in sheep and goats and Creutzfeldt-Jacob disease (CJD) in humans. Although CWD shares certain features with other TSEs, it is a distinct disease affecting only deer, elk and moose. There is no known treatment or vaccine for CWD.
The origin of CWD is unknown. The agent that causes CWD and other TSEs has not been completely characterized. However, the theory supported by most scientists is that TSE diseases are caused by proteins called prions. The exact mechanism of transmission is unclear. However, evidence suggests that as an infectious and communicable disease, CWD is transmitted directly from one animal to another through saliva, feces, and urine containing abnormal prions shed in those body fluids and excretions. The species known to be susceptible to CWD are Rocky Mountain elk (Cervus canadensis), red deer (Cervus elaphus), mule deer (Odocoileus hemionus), black-tailed deer (Odocoileus hemionus), white-tailed deer (Odocoileus virginianus), sika deer (Cervus nippon), and moose (Alces alces).
CWD is a slow and progressive disease. Because the disease has a long incubation period ( 1 ½ to 5 years), deer, elk and moose infected with CWD may not manifest any symptoms of the disease for a number of years after they become infected. As the disease progresses, deer, elk and moose with CWD show changes in behavior and appearance. These clinical signs may include progressive weight loss, stumbling, tremors, lack of coordination, excessive salivation and drooling, loss of appetite, excessive thirst and urination, listlessness, teeth grinding, abnormal head posture and drooping ears.
The United States Secretary of Agriculture declared CWD to be an emergency that threatens the livestock industry of the United States and authorized the United States Department of Agriculture to establish a CWD eradication program. This prompted the Department in 2004 to adopt regulations which allow for importation of captive cervids from states with confirmed cases of CWD under a health standard and permit system.
Nonetheless, 22 states, including New York, as well as two provinces in Canada have either CWD detections in free ranging deer or have cases of CWD diagnosed in captive deer. Most recently, in October of 2012, CWD was diagnosed in captive and wild deer in Pennsylvania. Given the proximity of this detection to New York and the apparent further spread of this disease throughout the country, the Department and the Department of Environmental Conservation (DEC) entered into a memorandum of understanding which restricts movement of captive cervids from these other states and the two Canadian provinces into New York State.
However, since entities in these states and provinces can still access New York markets by moving deer to states not subject to the ban, it was decided that the best approach to protect New York’s deer population was to ban importation until August 1, 2018 of any CWD susceptible cervids into the State, except movements to zoos accredited by the Association of Zoos and Aquariums. This will help safeguard animal health and protect New York’s 14 million dollar captive deer industry and the 780.5-million dollar wild deer hunting industry. By requiring hearings prior to August 1, 2018, the Commissioner will reevaluate and consider possible changes in the risks and impacts of CWD in the next five years to determine whether limited movement of CWD susceptible cervids into New York State is warranted. This represents a potential benefit to deer farmers seeking to import deer from out of state. Finally, by requiring restraint in an enclosure and annual CWD tests for captive cervids in New York State, the rule will help control the possible transmission of this disease within the State.
4. Costs:
(a) Costs to regulated parties:
There are approximately 433 entities raising a total of approximately 9,600 captive deer in New York State. Of these entities, approximately 10 to 15 purchase deer from out of state. Last year, 38 head of deer were purchased out of state by these entities at a cost of $19,000 to $190,000 ($500 to $5,000 per head). These entities would now have to purchase deer from entities within New York State which would actually result in additional sales for these other New York entities. The entities purchasing the deer may entail additional costs if due to the ban, market forces result in an increase in price for the deer purchased in New York.
For captive cervids, regulated parties will have to pay for adequate restraining devices, the costs for which vary. However, it is anticipated that most regulated parties already have such devices for purposes of restraining deer within an enclosure. Annual CWD tests cost $26.50 per animal; however, the Department will pay for these tests.
(b) Costs to the agency, state and local governments:
There will be no cost to the State or local governments. The Department will pay the cost for the annual CWD tests for captive cervids. In 2012, 723 animals were tested in the State at a cost to the Department of $19,168.
Source:
Costs are based upon data from the records of the Department’s Division of Animal Industry as well as observations of the deer industry in New York State.
5. Local government mandates:
The proposed amendments would not impose any program, service, duty or other responsibility upon any county, city, town, village, school district, fire district or other special district.
6. Paperwork:
It is anticipated that the rule will not result in any additional paperwork for regulated parties.
7. Duplication:
The rule does not duplicate any State or federal requirements.
8. Alternatives:
Four alternatives were considered for this emergency rule.
The first alternative is to leave in place the current regulation which prohibits movement of CWD susceptible species into New York from states which have had a diagnosed case of CWD in captive or wild cervids in the past 60 months or any part of a state which is within 50 miles of a site in another state where CWD has been diagnosed in the past 60 months. Given the current spread of CWD throughout the country, it was decided that this rule is inadequate, since deer farmers could circumvent this regulation by moving deer through states not subject to these requirements and in the process, access buyers in New York State.
The second alternative is to allow for importation of captive cervids from states with known cases of CWD if the states meet certain health standards and comply with a permitting system. However, this approach was determined to be inadequate given the apparent continuing spread of CWD in the country. Further, deer farmers could also circumvent New York’s current regulation by accessing New York markets through movement of deer through states not subject to the current requirements.
The third alternative is to implement a total ban on the import of CWD susceptible species into New York State. This approach was rejected as too onerous for regulated parties, who would be unable to import deer into New York State at any time, regardless of whether the threat of CWD has lessened at a future date.
The fourth alternative and the one ultimately chosen is to continue the ban on imports until August 1, 2018, except for movement to zoos accredited by the Association of Zoos and Aquariums. The rule also provides that prior to August 1, 2018, the Commissioner shall hold hearings to reevaluate the risk and impacts of allowing limited movement of CWD-susceptible cervids into New York State and if warranted, amend the rule to address changes in future circumstances. Finally, the rule requires confinement and CWD testing of captive cervids within New York State.
Due to the spread of CWD to other states and the threat that this disease poses to the State’s captive deer population, it was decided that this fourth alternative as set forth in the rule was the best method of preventing the further introduction of this disease into New York State and permitting it to be detected and controlled if additional cases were to arise within the State. Further, the rule is mindful of regulated parties by requiring that the risks and impacts of CWD be revisited in hearings to be conducted prior to August 1, 2018. If circumstances at that time warrant limited movement of CWD susceptible cervids into New York State, the regulations would be amended accordingly. Regarding restraint and annual CWD testing of captive cervids, this provision of the rule will help control the possible spread of CWD in the State.
9. Federal standards:
The proposed regulations do not exceed any minimum standards of the federal government.
10. Compliance schedule:
The rule will be effective immediately.
Regulatory Flexibility Analysis
1. Effect of rule:
There are approximately 433 small businesses raising a total of approximately 9,600 captive cervids in New York State.
The rule will have no impact on local governments.
2. Compliance requirements:
This rule prohibits the movement of cervids susceptible to CWD into New York State until August 1, 2018, except movements to a zoo accredited by the Association of Zoos and Aquariums. The rule provides that prior to August 1, 2018, the Commissioner shall hold hearings to reevaluate the risk and impacts of allowing limited movement of CWD-susceptible cervids into New York State and if warranted, amend the rule to address changes in circumstances.
This rule also addresses the movement of captive cervids within New York State. In order to move captive cervids within the State, the deer must have CWD monitored herd status. The rule implements requirements in order for a deer herd to have this status. Adequate physical restraint equipment must be used in order to keep the deer securely confined within an enclosure. Deer 12 months of age or older that die of natural causes must be tested for CWD. Finally, among deer 12 months of age or older, ten percent of the herd or 30 deer, whichever is less, must be tested annually for CWD.
The rule will have no impact on local governments.
3. Professional services:
It is not anticipated that regulated parties will have to secure any professional services in order to comply with this rule.
The rule will have no impact on local governments.
4. Compliance costs:
There are approximately 433 entities raising a total of approximately 9,600 captive deer in New York State. Of these entities, approximately 10 to 15 purchase deer from out of state. Last year, 38 head of deer were purchased out of state by these entities at a cost of $19,000 to $190,000 ($500 to $5,000 per head). These entities would now have to purchase deer from entities within New York State which would actually result in additional sales for these other New York entities. The entities purchasing the deer may entail additional costs if due to the ban, market forces result in an increase in price for the deer purchased in New York.
For captive cervids, regulated parties will have to pay for adequate restraining devices, the costs for which vary. However, it is anticipated that most regulated parties already have such devices for purposes of restraining deer. Annual CWD tests cost $26.50 per animal; however, the Department will pay for these tests.
The rule will have no impact on local governments.
5. Economic and technological feasibility:
The economic and technological feasibility of complying with the proposed amendments has been assessed. The rule is economically feasible. Although the regulation may result in deer farmers paying higher prices for deer purchased within the State than they would if they were to purchase deer from out of state, the economic consequences of the infection or exposure to CWD of the approximately 9,600 captive cervids already in the State would be far greater. The rule is technologically feasible. The 10 to 15 deer farmers who have purchased deer from outside New York State would still be able to purchase animals within the State.
The rule will have no impact on local governments.
6. Minimizing adverse impact:
In conformance with State Administrative Procedure Act section 202-b(1), the rule was drafted to minimize economic impact and reporting requirements for all regulated parties, including small businesses. While the ban prohibits approximately 10 to 15 entities from purchasing deer out of state, they would still be able to purchase animals from deer farmers within the State. Market forces may result in higher prices for these purchasers. However, the economic consequences of the infection or exposure to CWD of the approximately 9,600 captive cervids already in the State would be far greater absent the ban on importation set forth in the rule.
The rule will have no impact on local governments.
7. Small business and local government participation:
In developing this rule, the Department has consulted with representatives of the Northeast Deer and Elk Farmers as well as the Department of Environmental Conservation (DEC). DEC supports the rule.
Additionally, a hearing on the proposed adoption of the rule on a permanent basis was held on December 19, 2013. 13 people testified at the hearing and 36 comments were submitted during the comment period. Opinion on the regulation is divided. The Department is in the process of reviewing the comments.
Outreach efforts will continue.
The rule will have no impact on local governments.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The approximately 433 entities raising captive deer in New York State are located throughout the rural areas of New York, as defined by section 481(7) of the Executive Law.
2. Reporting, recordkeeping and other compliance requirements and professional services:
The rule prohibits the movement of cervids susceptible to CWD into New York State until August 1, 2018, except movements to a zoo accredited by the Association of Zoos and Aquariums. The rule provides that prior to August 1, 2018, the Commissioner shall hold hearings to reevaluate the risk and impacts of allowing limited movement of CWD-susceptible cervids into New York State and if warranted, amend the rule to address changes in circumstances.
The rule also addresses the movement of captive cervids within New York State. In order to move captive cervids within the State, the deer must have CWD monitored herd status. The rule implements requirements in order for a deer herd to have this status. Adequate physical restraint equipment must be used in order to keep the deer securely confined within an enclosure. Deer 12 months of age or older that die of natural causes must be tested for CWD. Finally, among deer 12 months of age or older, ten percent of the herd or 30 deer, whichever is less, must be tested annually for CWD.
It is not anticipated that regulated parties will have to secure any professional services in order to comply with the rule.
3. Costs:
There are approximately 433 entities raising a total of approximately 9,600 captive deer in New York State. Of these entities, approximately 10 to 15 purchase deer from out of state. Last year, 38 head of deer were purchased out of state by these entities at a cost of $19,000 to $190,000 ($500 to $5,000 per head). These entities would now have to purchase deer from entities within New York State which would actually result in additional sales for these other New York entities. The entities purchasing the deer may entail additional costs if due to the ban, market forces result in an increase in price for the deer purchased in New York.
For captive cervids, regulated parties will have to pay for adequate restraining devices, the costs for which vary. However, it is anticipated that most regulated parties already have such devices for purposes of restraining deer. Annual CWD tests cost $26.50 per animal; however, the Department will pay for these tests.
4. Minimizing adverse impact:
In conformance with State Administrative Procedure Act section 202-bb(2), the rule was drafted to minimize economic impact and reporting requirements for all regulated parties, including those in rural areas. While the ban prohibits approximately 10 to 15 entities from purchasing deer out of state, they would still be able to purchase animals from deer farmers within the State. Market forces may result in higher prices for these purchasers. However, the economic consequences of the infection or exposure to CWD of the approximately 9,600 captive cervids already in the State would be far greater absent the ban on importation set forth in the rule.
5. Rural Area Participation:
In developing this rule, the Department has consulted with representatives of the Northeast Deer and Elk Farmers as well as the Department of Environmental Conservation (DEC). DEC supports the rule.
Additionally, a hearing on the proposed adoption of the rule on a permanent basis was held on December 19, 2013. 13 people testified at the hearing and 36 comments were submitted during the comment period. Opinion on the regulation is divided. The Department is in the process of reviewing the comments.
Outreach efforts will continue.
Job Impact Statement
1. Nature of Impact:
It is not anticipated that there will be an impact on jobs and employment opportunities.
2. Categories and Numbers Affected:
The number of persons employed by the 433 entities engaged in raising captive deer in New York State is unknown.
3. Regions of Adverse Impact:
The 433 entities in New York State engaged in raising captive deer are located throughout the State.
4. Minimizing Adverse Impact:
By helping to protect the approximately 9,600 captive deer currently raised by approximately 433 New York entities from the further introduction of CWD, this rule will help to preserve the jobs of those employed in this agricultural industry.
Assessment of Public Comment
The Department received comments on amendments of sections 68.1, 68.2, 68.3, 68.5, 68.7 and 68.8 of 1 NYCRR, which would help prevent the introduction and spread of chronic wasting disease (CWD) in captive cervids in New York State. The emergency rule took effect upon filing of the Notice of Emergency Adoption and Proposed Rule Making (Notice) with the NYS Department of State on October 15, 2013. (The emergency rule was subsequently readopted on January 13, 2014). The Notice was published in the State Register on October 30, 2013. A hearing on the amendments was held on December 19, 2013. The Department received comments during the hearing and the public comment period.
Comments Supporting the Amendments:
Comment: The Humane Society of the United States (HSUS) expressed support for the amendments and urged an import ban on all cervids. HSUS indicated that there are too many unknown variables about CWD and its potential to pose a health risk to all captive cervids as well as wildlife.
Comment: David Horn, DVM expressed support for the amendments, contending that the ban should be in place until a live test is developed. Dr. Horn commented that current testing is insufficient to protect the state from the reintroduction of CWD.
Comment: The New York State Department of Environmental Conservation (DEC) expressed support for the amendments. DEC opined that the only effective way to protect the wild deer population is to prevent CWD infected animals and infected material from entering the State. DEC commented that were the disease allowed to enter the State, it would also harm deer hunting businesses and affect deer hunters.
Comment: Gail Hutten, a deer hunter, expressed support for the amendments, stating that the importation of cervids into the State could put other wild animals at risk, particularly the white-tailed deer. She concluded that it would be irresponsible to allow the importation of cervids into the state that could be potentially infected with CWD.
Comment: The New York Chapter of the Wildlife Society (Society) expressed support for the amendments. The Society commented that white-tailed deer are an important ecological, recreational and economic resource which could be devastated by the reintroduction of CWD into New York.
Comment: Jeremy Wilber, the Woodstock Town Supervisor, expressed support for the amendments. He stated that trucking animals from other states into New York would increase the chance of spreading CWD to the State’s native wildlife population.
Comment: The State of New York Conservation Fund Advisory Board (Board) expressed support for the amendments. The Board observed that the wild white-tail deer population generates approximately $780-million by hunting and associated businesses and $290-million in State and local taxes. It is the Board’s opinion that the amendments will help protect this valuable resource from the impact of CWD.
Comment: The New York State Fish and Wildlife Management Board (Board) expressed support for the amendments, noting that recent cases of CWD in other states have shown that currently used precautions -- such as “closed herds,” “certified herds” and “double fencing” – have not prevented the spread of CWD. The Board stated that CWD, besides killing deer, would have a detrimental economic impact on the New York white tail deer industry, which generates about $780-million in economic activity annually.
Comment: Carl Belfiglio, Ulster County Legislator and Chairman of the Ulster County Legislature’s Environmental, Energy and Technology Committee, expressed support for the amendments. He also urged a ban on all cervid imports, noting that CWD may pose a risk to the health of other captive cervids and wildlife.
Comment: The New York State Conservation Council (Council) expressed support for the amendments. The Counsel, representing about 330,000 sportsmen, commented that white-tail deer are enjoyed by sportsmen and outdoor enthusiasts. Deer hunting has an economic impact of nearly $800-million dollars, which would be threatened if CWD were to emerge.
Comment: Eileen Jefferson, DVM expressed support for the amendments. She observed that because CWD is not fully understood a “hardline” approach should be taken to control the disease. She concluded that regardless of the threat of legal action by the deer farming industry, the Department should stand firm, adding that the serious risk of the spread of CWD “absolutely trumps” these special interests.
Comment: The Quality Deer Management Association (QDMA) expressed support for the amendments, asserting that disease transmission from captive to free-ranging cervids is a major threat to hunting and wildlife management. QMDA also recommended that strict movement regulations and testing protocols be maintained or enhanced.
Comment: Christine Hutten, a licensed wildlife rehabilitator, expressed support for the amendments, noting that allowing the import of animals increases the chance of spreading CWD and other diseases. She says CWD would also affect hunting, since people consuming an infected animal might become ill.
Comment: The Wildlife Conservation Society (WCS) commented that the health and well being of animals in zoos is of importance to accredited members of the Association of Zoos and Aquariums (AZA). The WCS described the precautions taken by AZA facilities with respect to CWD: animals are observed daily; an animal care staff examines the animals’ behavior; each animal has a permanent health record; fresh food and clean living areas are provided; and fencing and other facilities are in place to prevent animal injury or escape. Further, animals that die at AZA facilities undergo a post mortem, the record of which is maintained at the zoo, and CWD testing is performed on all cervids that die and are 12 months of age or older. Finally, animals that are moved undergo a pre-shipment veterinary examination. The WCS indicated that the movement of cervids from zoo to zoo for breeding is critical for gene exchange in the small populations of cervids at zoos.
Response: The Department recognizes the factual support, concerns and opinions offered in comments described above, many of which provide the basis for the proposed amendments designed to help prevent the introduction and spread of chronic wasting disease (CWD) in captive cervids in New York State.
Comments Opposing the Amendments:
Issue/Concern: One commenter argued that the State does not know enough about CWD to make a “drastic decision.”
Response: CWD is an incurable and deadly disease. Our lack of knowledge on modes of transmission, incubation periods and live animal testing requires us to be more, not less, restrictive. Deferring the adoption of measures that provide increased protection against the introduction of the disease in this state, in the hope of developing better knowledge about the disease, increases the chance of importing captive animals with the disease. Under current certification programs, the disease still arises in captive cervid populations. CWD continues to spread among the wild populations. Absent action, CWD is certain to return to this state.
Issue/Concern: One commenter suggested that CWD existed for many years and its spread cannot be explained by the importation of infected deer. The commenter noted that if CWD lives in the soil, the imposition of burdens on captive deer farmers is wrong.
Response: CWD spreads slowly naturally but it has emerged hundreds of miles away from any known infection in New Mexico, Wisconsin, West Virginia, and New York. The emergence in these areas is best explained by the legal and illegal movement of deer and elk and products of deer and elk. The “survivability” of CWD in the soil argues for more restrictive measures to prevent its introduction.
Issue/Concern: One commenter noted that there has been only one case of CWD in New York State since 2001 and the deer in question did not come from a monitored farm; and many commenters opposing the proposed amendments expressed the view that the current regulations are working and questioned the need for the new regulations.
Response: There were seven CWD positive white-tailed deer discovered in New York in 2005. Five CWD positive animals were found in two herds, four in the index herd and one which was moved from the index herd to the second herd. The two herds were located 3.5 air miles apart. Both herds were enrolled in one of the two CWD herd programs offered by the Department. CWD testing was done to comply with CWD program requirements. The other two CWD positive animals were wild white-tailed deer which were harvested within 10 miles of the two infected captive deer herds.
In other states with regulations similar to New York’s (prior to the adoption of the emergency regulations) CWD has been discovered in certified herds. In light of the spread of CWD in both captive and wild cervid population, the Department believes that the risk of reintroducing CWD into the state through the importing of captive cervids is increasing. Were this state to continue to rely on prior regimens that have been unable to contain CWD, and given the current state of affairs, it would only be a matter of time before CWD would be reintroduced into New York State through the importation of captive cervids.
Issue/Concern: Several commenters indicated that CWD cannot be transmitted to other animals or people.
Response: A paper has just been published that presents evidence that while transmission of CWD to other species appears to be unlikely, there is no biochemical mechanism to prevent it from happening. Nevertheless, we don’t know enough about this disease to be certain that CWD cannot be transmitted to humans or other animals. Given the fact that the incubation or latent periods of this disease in people and animals other than deer and elk are unknown, it may be wiser to be cautious and reduce the possibility of exposure. Regardless, these regulations are still necessary to protect wild and captive deer and elk in New York.
Issue/Concern: One commenter argued that CWD is not the “massive contagion” that some claim it is.
Response: We don’t know how extensive an outbreak of CWD would be if it were left unchecked. CWD is a slow moving disease, but one for which there is no approved live animal test, no treatment, and for which no vaccine exists. The general consensus in the scientific community is that without adequate restraints, CWD will affect all areas of North America where white-tailed deer, mule deer, elk and moose are native. While CWD is not a fast moving disease that destroys entire populations of animals in a short time, it does appear to be relentless, once established. Reports have just been published by the Wisconsin Dept. of Natural Resources that demonstrate that 25% of the male deer in South-Central Wisconsin are now positive for CWD, as are 10% of the female deer there.
Issue/Concern: One commenter questioned why there is an emergency now when CWD was first discovered in 1967. The commenter also questioned the science behind prohibiting imports until 2018.
Response: Recent outbreaks in West Virginia, Maryland, Virginia, Pennsylvania and Missouri are a concern. We believe the risk of introduction is rising. There is a provision for review of this regulation to be done no later than August 2018. With the increase of scientific knowledge about CWD, the risk of CWD may be reduced by then. If so, the regulation will be amended to meet the new reality. If there are events between now and then that lead us to believe an earlier review is warranted, such a review will be performed.
Issue/Concern: Two commenters suggested that rather than implementing the new regulations, the Department should strengthen the current ones by prohibiting, for five years, imports from cervid herds with less than 10 years (up from the current 5 years) of being in a CWD monitoring program and no importation from within 100 miles (up from the current 50 miles) of a known CWD positive deer. After five years, the increased restrictions could be reevaluated.
Response: Recent new cases of this disease in other states show that even these restrictions would be inadequate. In 2012, CWD was discovered in captive facilities in Iowa and Pennsylvania for the first time, and in a Minnesota facility holding red deer. The Minnesota facility had been monitoring for CWD for 12 years before one of its red deer tested positive, and the facilities in Iowa and Pennsylvania had been monitored for nine years each. Requiring captive cervids to be imported only from those facilities more than 100 miles from any known CWD case will decrease the chance of exposure of captive cervids to CWD infected wild cervids near the facility of origin. However, this requirement cannot guarantee the herd of origin from unknowingly having or acquiring an infected captive cervid.
Issue/Concern: Two commenters suggested that adequate fencing to prevent the comingling of wild and captive deer would prevent the potential spread of CWD from wild to captive deer.
Response: There have been many incidents in New York and elsewhere in which poor quality fence construction, inadequate maintenance, gates left open, vandalism and accidents have resulted in captive cervids escaping from enclosures and permitted contact between formerly captive and wild cervids.
Issue/Concern: One commenter suggested that the State follow the standards under the federal rule, since New York is one of six states approved for the federal CWD program.
Response: New York is one of 23 states with a USDA Approved State CWD Herd Certification Program (HCP) which meets the minimum requirements of the national CWD HCP. The federal standards give states the latitude to enact/enforce standards that exceed the federal minimum standards, so in essence, the Department is following the federal program.
Issue/Concern: One commenter suggested that it would be better to test and monitor deer than prohibit importation.
Response: This would mean dealing with an incurable, insidious disease after it has been brought it into the State. It would be costly, with severe adverse impacts for the captive cervid industry. Due to the large enclosures used in the industry, some deer die without being tested for CWD.
Issue/Concern: One commenter indicated that monitoring and inspection of deer carcasses is needed, since one case of CWD entered New York State through carcass scrapings.
Response: The most likely explanation of the 2005 detection of CWD in Oneida County is that the prions arrived with taxidermy materials imported from a state where CWD is endemic. The taxidermy materials are believed to have been received by a taxidermist who also kept captive whitetail deer and cared for orphaned wild fawns. As a result of that introduction, the Department of Environmental Conservation (DEC) put into place measures which eliminated the practice of importing from states or provinces with CWD those portions of a carcass, either captive born and raised or wild, which could spread CWD. DEC is rewriting its regulations pertaining to the importation of deer harvested in other states and also for products of deer that originate in other states. The Department supports these increased controls on products of wild deer as a complement to our regulations.
Issue/Concern: Two commenters expressed the view that the State chose regulating deer farms as the cheaper alternative to testing wild deer.
Response: The Department of Agriculture and Markets has judrisdiction over domestic livestock. CWD is present in captive deer and elk herds in the United States; and it’s reintroduction through importation of affected animals to New York would impose a significant burden on the industry and make it more difficult for deer and elk owners to sell animals here in New York and in other states.
The Department does not regulate wild animal health and has no power to test or regulate wild cervids. The Department, however, does have a responsibility to protect the commonly held wild animal resources of this state from diseases that may be present in captive wildlife and domestic livestock. DEC, which has jurisdiction over wild cervid populations, supports the Department’s amendments and is currently considering an appropriate response to CWD for the wild cervid populations, and supports the Department’s efforts to address the CWD problem with respect to animals within the Department’s jurisdiction.
Issue/Concern: A number of commenters expressed the view that deer farms are not responsible for the spread of CWD but, rather, officials should look to wild deer and hunted deer as sources for the disease. One commenter noted that feces from crows feeding on infected carcasses could be a source of CWD.
Response: There are probably several ways for CWD to be spread to new areas. This Department has control of one way which allows the disease to spread hundreds of miles. To neglect trying to control this risk because there are other risks we can’t directly control is not viable.
Issue/Concern: Many commenters said that the regulations would be injurious to deer farms and would hurt the economy since farms may be put out of business resulting in job losses. One commenter indicated that tourism dollars may be lost. Other commenters opposed the regulation because they believe it will increase the price of New York bred and raised deer.
Response: The Department is mindful of the economic impact claimed by some commentators opposing the regulations. Significantly, however, no industry group or farmer has provided any financial data of any kind to support the general and conclusory allegations of the economic harm to farm operations that would result from the import ban. Moreover, only a small percentage of cervid farmers actually imports animals, and, accordingly, whatever the predicted impact, it would be experienced by only a very limited number of cervid farmers.
On the other hand, in-state farmers involved in breeding could benefit from increased demand, which may prompt them to expand their herds and hire additional workers to care for their animals and maintain their fences.
Issue/Concern: One commenter stated that the regulation would be costly to small businesses, citing the requirement for a restraint system which could cost as much as $15,000. This commenter observed that anesthesia is much less expensive and just as effective.
Response: Repeated handling and darting of animals have substantial risk of harm to both the animals and the handlers. Previously, the Department allowed existing herds to attain CWD Certified herd status before proper facilities were in place. This resulted in some herd owners never building proper facilities and having herd inventories that had to be completed over the span of several visits due to an inability to handle the animals efficiently. These repeated visits are a drain on state resources.
Further, regulations at section 68.2(e) already require adequate handling facilities. While it is possible that proper facilities could cost as much as the commenter claims, a less complex corral and chute system can be built for much less money.
Issue/Concern: Many commenters indicated that the interstate movement of deer is needed to improve the genetics and bloodlines of their deer herds. One commenter pointed out that without the ability to import deer, farmers would be unable to breed and produce distinctive and unique animals desired by patrons of the deer and elk farming industry. Those patrons may opt to purchase deer out-of-state. Another commenter indicated that genetic improvement will take longer which would result in the inability of New York farmers to compete with farmers from out-of-state.
Response: The Department still permits the importation of semen and embryos from susceptible species, so there will still be means of introducing new bloodlines to New York captive deer herds, other than live animal importations. The cattle, swine, equine, and even turkey industries have all achieved very rapid improvement in herd genetics through the use of artificial insemination (AI). The modern dairy industry would not be possible without AI.
Some New York owners of higher priced cervids have expressed frustration that shooting preserves aren’t interested in buying the highest quality animals due to the cost. It may be that having modest quality animals that are affordable for their patrons to shoot is more important than having the very best animals. Convenience seems to be one of the most important considerations for people who opt to hunt at private preserves.
Issue/Concern: One commenter stated that the regulations may result in deer farmers being unable to find out-of-state markets for their deer, since out-of-state farmers may not deal with farmers who cannot purchase deer outside of New York State.
Response: The commenter provided no factual support for this claim. Even before 2012, there weren’t large numbers of deer and elk leaving the state.
In 2013 two white-tailed deer breeders in New York sold 39 high quality shooter bucks to hunt park facilities in three other states because no preserve owners in New York were interested in purchasing their product for their asking price.
Issue/Concern: One commenter said that preventing the movement of semen from out-of-state to New York State would undermine the deer farmer’s ability to improve their herd’s genetics and bloodlines. Another commenter said that the importation of semen should be allowed since there is no proof that CWD is transmitted through semen. One other commenter argued that the use of semen is not a viable alternative since conception occurs only about 50% of the time (as compared to 99% of the time in conventional insemination) and is costly.
Response: The importation of deer and elk semen is not prohibited in this regulation.
Sufficient genetic diversity can be maintained through males and females already in New York and through imported semen during the five year period covered by this regulation.
Breeding with live males is obviously easier. We agree that conception runs about 50-60% with artificial insemination. During the hearing and throughout the written comments there was mention of the need to introduce new genetics that couldn’t be found in New York in order to prevent inbreeding.
Issue/Concern: A number of commenters questioned why zoos are exempt from the requirements of the regulations. One commenter noted that CWD was found in two zoos.
Response: AZA (Association of Zoos and Aquariums) zoos are an entirely different level of risk than the average captive deer business. AZA zoos have smaller collections of CWD susceptible species, the animals are monitored throughout the day, escapes are extremely rare, there is a perimeter fence in addition to the animals’ primary enclosure, the amount of primary enclosure fence that must be maintained is much less, there is careful veterinary oversight, there are post mortem exams on nearly all mortalities, and CWD sampling opportunities are very seldom missed. We are aware of one zoo in Canada which was able to demonstrate, through tissues it had banked from long dead animals, that several animals in their collection which died between 1975 and 1981 had CWD. No other premises received CWD positive or CWD suspect animals from this facility.
