PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 68.1(g) 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 amends section 68.1(g) of 1 NYCRR to prohibit the importation of captive cervids (deer, elk and moose) into New York State from entities within states where CWD has been detected within the past 60 months or from any part of a state which is within 50 miles of a site in another state where CWD has been detected within the past 60 months.
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, this past fall, CWD was diagnosed in captive deer in Pennsylvania. Department regulations currently prohibit the importation of CWD susceptible cervids from a CWD infected zone, which is defined as a geographic area, irrespective of state boundaries, in which CWD is present, whether in wild or captive cervids. This rule would amend the definition of CWD infected zone in section 68.1(g) of 1 NYCRR to include (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 was diagnosed in a 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.
The regulations are necessary to protect the general welfare. By establishing a five-year look-back for CWD affliction in cervids, the rule would help protect animal health as well as New York’s 14 to 21 million dollar captive deer industry and the 750-million dollar wild deer hunting industry.
Based on the facts and circumstances set forth above, the Department has determined that the immediate adoption of this rule 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 (g) of section 68.1 of Title 1 of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended to read as follows:
(g) CWD infected zone means [a defined geographic area, irrespective of state boundaries, in which CWD is present, whether in wild or captive cervids]:
(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.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire July 16, 2013.
Text of rule and any required statements and analyses may be obtained from:
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 this rule is proposed are aimed at preventing infectious or communicable diseases affecting domestic animals from being brought into the State to control, suppress and eradicate such diseases and prevent the spread of infection and contagion. The rule would further this legislative goal by prohibiting importation of cervids from states or parts of states where CWD has been detected within the past 60 months, thereby protecting animal health and New York’s deer industry.
3. Needs and benefits:
The rule prohibits the movement of cervids (deer, elk and moose) from states or parts of states where CWD has been detected within the past 60 months.
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, this past fall, CWD was diagnosed in captive deer in Pennsylvania.
Department regulations currently prohibit the importation of CWD susceptible cervids from a CWD infected zone, which is defined as a geographic area, irrespective of state boundaries, in which CWD is present, whether in wild or captive cervids. This rule would amend the definition of CWD infected zone in section 68.1(g) of 1 NYCRR to include (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. By establishing a five-year look-back for CWD affliction in cervids, the rule would help protect animal health as well as New York’s 14 to 21 million dollar captive deer industry and 750-million dollar wild deer hunting industry.
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 25 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). The rule will exclude approximately 50 deer per year from importation, requiring New York entities to purchase deer from entities within New York State, entities within states where CWD has not been detected within the past 60 months or from any part of a state which is within 50 miles of a site in another state where CWD has not been detected within the past 60 months. Sourcing approximately 50 deer from these other locations could increase costs an average of $500 to $2,000 per deer, or $25,000 to $100,000 total. It is anticipated that most of these deer (approximately 40 head) would be purchased in New York State rather than out of state. At $1,000 to $5,000 per deer, New York entities could realize $40,000 to $200,000 in additional income.
(b) Costs to the agency, state and local governments:
There will be no cost to the Department, State or local governments.
(c) 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:
Three alternatives were considered.
The first alternative was to leave the current regulatory scheme in place which allows 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 under the current regulations. However, this approach was determined to be inadequate given the apparent further spread of CWD in the country. Additionally, deer owners could circumvent New York’s current regulation by accessing New York markets through movement of deer through states not subject to the current requirements.
The second alternative was to implement a total ban on importation. Due to the spread of CWD to other states and the threat that this disease poses to the State’s captive and wild deer populations, it is clear a total ban on importation of CWD susceptible species would be the best method of preventing another introduction of this disease into New York State. Furthermore, by permitting the disease to be detected and controlled in a more efficient manner, a complete ban on importation would greatly simplify an epidemiologic investigation if a new case of CWD were to occur in New York State at some future date.
The third alternative and the one ultimately implemented in this rule is the prohibition of 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. It was determined that absent notice and an opportunity for a regulatory hearing, this alternative was the best one to pursue on an emergency basis. However, since a total ban on imports is likely to be the best method to help prohibit the further introduction of CWD in New York, it is anticipated that the total ban set forth in the second alternative will be pursued as a permanent measure at a later date.
9. Federal standards:
The proposed regulations do not exceed any minimum standards of the federal government.
10. Compliance schedule:
The rule will be effective upon filing with the Department of State.
Regulatory Flexibility Analysis
1. Effect of rule:
There are approximately 433 small businesses raising a total of approximately 9,600 captive cervids (the family that includes deer and elk) in New York State.
The rule will have no impact on local governments.
2. Compliance requirements:
Under the rule, regulated parties are prohibited from importing cervids into New York State from entities within states where CWD has been detected within the past 60 months or from any part of a state which is within 50 miles of a site in another state where CWD has been detected within the past 60 months.
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 25 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). The rule will exclude approximately 50 deer per year from importation, requiring New York entities to purchase deer from entities within New York State, entities within states where CWD has not been detected within the past 60 months or from any part of a state which is within 50 miles of a site in another state where CWD has not been detected within the past 60 months. Sourcing approximately 50 deer from these other locations could increase costs an average of $500 to $2,000 per deer, or $25,000 to $100,000 total. It is anticipated that most of these deer (approximately 40 head) would be purchased in New York State rather than out of state. At $1,000 to $5,000 per deer, New York entities could realize $40,000 to $200,000 in additional income.
The rule will have no impact on local governments.
5. Economic and technological feasibility:
The economic and technological feasibility of complying with the rule 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 as well as from states and parts of states within 50 miles of other states where there have been no CWD detections in the past 60 months.
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 rule prohibits approximately 10 to 15 entities from purchasing deer from states with CWD detections within the past 60 months or states within 50 miles of other states with CWD detections within the past 60 months, those entities would still be able to purchase animals from deer farmers within New York as well as from states with no CWD detections within parameters set forth in the rule. 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 set forth in the rule.
The rule will have no impact on local governments.
7. Small business and local government participation:
The Department and the Department of Environmental Conservation (DEC) have reached a tentative agreement that any state which has had a case of CWD in the past five years would be defined as a CWD infected zone within the meaning of Part 68 of 1 NYCRR. However, there has not been any outreach yet regarding this rule with regulated parties, although outreach is planned in the near future.
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:
Under the rule, regulated parties are prohibited from importing cervids into New York State from entities within states where CWD has been detected within the past 60 months or from any part of a state which is within 50 miles of a site in another state where CWD has been detected within the past 60 months. There are no reporting and record-keeping requirements required under the rule; nor is it anticipated that regulated parties would 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 25 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). The rule will exclude approximately 50 deer per year from importation, requiring New York entities to purchase deer from entities within New York State, entities within states where CWD has not been detected within the past 60 months or from any part of a state which is within 50 miles of a site in another state where CWD has not been detected within the past 60 months. Sourcing approximately 50 deer from these other locations could increase costs an average of $500 to $2,000 per deer, or $25,000 to $100,000 total. It is anticipated that most of these deer (approximately 40 head) would be purchased in New York State rather than out of state. At $1,000 to $5,000 per deer, New York entities could realize $40,000 to $200,000 in additional income.
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 rule prohibits approximately 10 to 15 entities from purchasing deer from states with CWD detections within the past 60 months or states within 50 miles of other states with CWD detections within the past 60 months, those entities would still be able to purchase animals from deer farmers within New York as well as from states with no CWD detections within parameters set forth in the rule. 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 set forth in the rule.
5. Rural area participation:
The Department and the Department of Environmental Conservation (DEC) have reached a tentative agreement that any state which has had a case of CWD in the past five years would be defined as a CWD infected zone within the meaning of Part 68 of 1 NYCRR. However, there has not been any outreach yet regarding this rule with regulated parties, although outreach is planned in the near future.
The rule will have no impact on local governments.
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 agency received no public comment since publication of the last assessment of public comment.
