PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 68 of Title 1 NYCRR.
Statutory authority:
Agriculture and Markets Law, sections 18(6), 72 and 74
Subject:
Movement of elk and deer.
Purpose:
To incorporate by reference the federal herd certification program for the interstate movement of elk and deer.
Text of final rule:
Part 68.1 of Title 1 of the Official Compilation of Codes, Rules and Regulations of the State of New York is repealed and a new section 68.1 is added to read as follows:
68.1 Definitions. For the purposes of this Part:
(a) "CWD susceptible cervid" means any captive cervid of the genera Alces, Odocoileus or Cervus or any hybrid of such genera.
(b) "CWD exposed cervid" means a cervid that is, or has been part of a CWD positive herd within five years.
(c) "CWD positive cervid" means a cervid that has had a diagnosis of CWD confirmed by means of an official CWD test conducted by a laboratory certified by USDA/APHIS.
(d) "CWD negative cervid" means a cervid that has had an official CWD test conducted by a laboratory certified by USDA/APHIS that resulted in a "not detected" or negative classification.
(e) "CWD suspect cervid" means a cervid for which inconclusive laboratory evidence suggests a diagnosis of CWD.
(f) "CWD infected zone" means a defined geographic area, irrespective of state boundaries, in which CWD is present, whether in wild or captive cervids.
(g) "Captive cervids" means cervids that are privately or publicly maintained or held for economic or other purposes within a confined space by a perimeter fence, facility or other barrier. Wild white-tailed deer held in captivity under license or permit issued by the New York State Department of Environmental Conservation pursuant to Environmental Conservation Law section 11-0515 (licenses to collect, possess or sell for scientific or exhibition purposes) are not considered captive cervids for the purposes of this Part.
(h) "Cervid" means any member of the cervidae family.
(i) "Chronic wasting disease" ("CWD") means a transmissible spongiform encephalopathy (TSE) of cervids.
(j) "Commingling" means cervids that have direct contact with each other or have less than thirty (30) feet of physical separation or that share management equipment, pasture, or water sources. Cervids are considered to have commingled if they have had such contact within the last five years.
(k) "Department" means the New York State Department of Agriculture and Markets.
(l) "Herd" means one or more cervids that are under common ownership or supervision and are grouped on one or more parts of any single premises (lot, farm or ranch), and all cervids under common ownership or supervision on two or more premises which are geographically separated but on which cervids have been commingled or had direct or indirect contact with one another.
(m) "CWD herd plan" means a written herd management agreement developed by the herd owner, State and Federal veterinarians, and others, and that has been approved by the respective Federal, State and Tribal officials. A herd plan sets out the steps to be taken to eradicate CWD in a CWD positive, exposed, or suspect herd.
(n) "CWD positive herd" means a herd in which a CWD positive cervid resided at the time it was diagnosed and which has not been depopulated and released from quarantine.
(o) "CWD suspect herd" means a herd in which one or more CWD suspect cervids are present.
(p) "Special purpose herd" means a captive herd managed and maintained in such a manner that no live cervid is removed, or allowed to be removed, from the designated premises except for immediate slaughter at an approved CWD slaughter facility.
(q) "CWD exposed herd" means a herd in which an epidemiological link between the herd and another positive or exposed herd or animal is established to have occurred within the previous five years.
(r) "Official identification" means a unique form of individual animal identification approved by the Department. Cervids in a herd under the Herd Certification Plan must have at least one eartag as one to the two means of animal identification.
(s) "CWD monitored herd" means a program of surveillance, monitoring, testing and related actions designed to identify CWD infection in special purpose CWD susceptible cervid herds.
(t) "Owner" means an individual, partnership, company, corporation or other legal entity that has legal title to an animal or herd of animals.
(u) "Premises" means the ground, area, buildings, water sources and equipment commonly shared by a herd of animals.
(v) "CWD premises plan" means the section of a herd plan which outlines the actions to be taken with regard to possible environmental contamination due to a CWD positive or exposed herd.
(w) "Quarantine" means an order issued by a State or Federal official prohibiting the movement of animals to and from a designated premises.
(x) "State animal health official" means the official of a state or country responsible for livestock and poultry disease control and eradication programs.
(y) "Official test" means a CWD test approved by USDA/APHIS which is performed at a USDA approved laboratory.
(z) "USDA/APHIS" means the United States Department of Agriculture Animal and Plant Health Inspection Service.
(aa) “Certificate of Veterinary Inspection (CVI)” means a document which:
(1) is issued by a veterinarian accredited by USDA/APHIS or a similar agency in the country of origin and is approved and counter-signed by the chief livestock health official of the state or country of origin.
(2) The CVI shall include:
(i) A movement permit number issued by the Department;
(ii) the full name and address including a federal premises number of both the consignor and consignee, the destination of each animal, the date of veterinary inspection, and the anticipated date of entry into New York;
(iii) the Chronic Wasting Disease and Tuberculosis status of each herd that the animal(s) resided in;
(iv) the identification of each animal including the species, breed, age, sex, all eartags, tattoos, brands, radio frequency identifiers, and registration number, if any;
(v) all test results required for movement by all state and federal agencies;
(vi) a statement that the animal(s) have been inspected by the veterinarian issuing the CVI and the animals is(are) not showing signs of infectious, contagious, or communicable disease except as noted.
(3) The CVI is valid for movement up to and including the 30th day following the date of inspection.
(ab) “immediate slaughter” means slaughter within 10 days (240 hours) at a state or federally inspected facility which will retain and make available to USDA/APHIS or department personnel records of all identification from the animal(s) and samples as required by the USDA/APHIS or the department to test for Chronic Wasting Disease and Tuberculosis.
(ac) “Movement permit” means a document issued by the Department which shall identify the source and destination of the shipment, the number of animals involved and the required individual identification of each cervid in the shipment, and shall accompany the cervids imported or moved into or within the State.
Section 68.4 of Title 1 of the Official Compilation of Codes, Rules and Regulations of the State of New York is repealed and a new section 68.4 is added to read as follows:
68.4 CWD Certified Herd Program.
(a) For purposes of enforcement of article 5 of the Agriculture and Markets Law, and except where in conflict with the statutes of this State or with rules and regulations promulgated by the commissioner, the Commissioner hereby adopts the current federal regulation in sections 55.21 through 55.25 in subpart b of part b of title 9 of the Code of Federal Regulations (revised January 1, 2013; U.S. Government Printing Office, Washington, DC 20402) at pages 197 through 202 entitled Chronic Wasting Disease Herd Certification Program.
(b) Copies of this regulation, as published in the Code of Federal Regulations are maintained in a file at the Department of Agriculture and Markets, Division of Animal Industry, 10B Airline Drive, Albany, NY 12235, and are available for public inspection and copying during regular business hours.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 68.4(a).
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
Revised Job Impact Statement
The Department made nonsubstantive changes to the proposed rule. The Department considered the effect of this proposed rule and the changes on jobs in the State and has determined that the proposal would not have an adverse impact on jobs. In fact, the proposed rule may have a positive impact on jobs for elk and deer breeders. Adoption of the proposed amendment would allow white tailed deer and elk breeders to market their animals out of state. Each year, New York exports between 50 and 100 live deer and elk representing between $100,000 and $500,000 in sales. These sales might have a positive impact on employment within the State and in any case, would not have an adverse impact on jobs.
Initial Review of Rule
As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 5th year after the year in which this rule is being adopted.
