New York Register, Volume 36, Issue 15, April 16, 2014

• Jurisdiction: New York
• Library: New York Register
• Published date: 16 April 2014
• Year: 2014

RULE MAKING

ACTIVITIES

Each rule making is identified by an I.D. No., which consists

of 13 characters. For example, the I.D. No.

AAM-01-96-00001-E indicates the following:

AAM -the abbreviation to identify the adopting agency

01 -the State Register issue number

96 -the year

00001 -the Department of State number, assigned upon

receipt of notice.

E -Emergency Rule Making—permanent action

not intended (This character could also be: A

for Adoption; P for Proposed Rule Making; RP

for Revised Rule Making; EP for a combined

Emergency and Proposed Rule Making; EA for

an Emergency Rule Making that is permanent

and does not expire 90 days after filing.)

Italics contained in text denote new material. Brackets

indicate material to be deleted.

Department of Agriculture and

Markets

NOTICE OF ADOPTION

Captive Cervids

I.D. No. AAM-44-13-00007-A

Filing No. 265

Filing Date: 2014-04-01

Effective Date: 2014-04-16

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure 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

Subject: Captive cervids.

Purpose: To prevent the reintroduction and spread of chronic wasting dis-

ease in New York State.

Text or summary was published in the October 30, 2013 issue of the Reg-

ister, I.D. No. AAM-44-13-00007-EP.

Final rule as compared with last published rule: No changes.

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

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 2019, which is no later than the 5th

year after the year in which this rule is being adopted

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. A hearing was held on December 19, 2013.

The Department received comments during the hearing and the public

comment period.

Comments Supporting the Amendments:

Comment: One commenter urged an import ban on all cervids since

there are too many unknown variables about CWD and its impact on cap-

tive cervids and wildlife.

Comment: One commenter contended that the ban should be in place

until a live test is developed.

Comment: One commenter indicated that the import ban is the only ef-

fective way to protect the wild deer population. Two other commenters

stated that the importation of cervids into the State could put other wild

animals at risk.

Comment: One commenter 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: One commenter observed that the wild white-tail deer

population generates approximately $780-million by hunting and associ-

ated businesses and $290-million in State and local taxes.

Comment: One commenter noted 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.

Comment: One commenter urged a ban on all cervid imports, noting

that CWD may pose a risk to the health of other captive cervids and

wildlife.

Comment: One commenter noted that white-tail deer have an economic

impact of nearly $800-million dollars, which would be threatened if CWD

were to emerge.

Comment: One commenter observed that because CWD is not fully

understood, a “hardline” approach should be taken to control the disease.

Comment: One commenter asserted that disease transmission from cap-

tive to free-ranging cervids is a major threat to hunting and wildlife

management.

Comment: One commenter noted that allowing the import of animals

increases the chance of spreading CWD and other diseases.

Comment: One commenter noted that the health and well being of

animals in zoos is of importance to accredited members of the Association

of Zoos and Aquariums (AZA).

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 knowl-

edge on modes of transmission, incubation periods and live animal testing

requires us to be more, not less, restrictive.

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 movement 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

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come from a monitored farm; and many commenters opposing the

proposed amendments expressed the view that the current regulations are

working.

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. Both herds were enrolled in one of the two CWD

herd programs offered by the Department. 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 sim-

ilar to New York’s (prior to the adoption of the emergency regulations)

CWD has been discovered in certified herds.

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.

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.

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 introduc-

tion 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.

Issue/Concern: Two commenters suggested that rather than implement-

ing the new regulations, the Department should strengthen the current

ones. After five years, the increased restrictions could be reevaluated.

Response: Recent new cases of CWD in other states show that even

these restrictions would be inadequate. 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 escap-

ing from enclosures.

Issue/Concern: One commenter suggested that the State follow the stan-

dards 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 dis-

ease after it has been brought it into the State.

Issue/Concern: One commenter indicated that monitoring and inspec-

tion 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.

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 jurisdiction

over domestic livestock. 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.

Issue/Concern: A number of commenters expressed the view that deer

farms are not responsible for the spread of CWD; rather, officials should

look to wild deer and hunted deer as sources for the disease.

Response: There are probably several ways for CWD to be spread to

new areas. This Department has control of one way which allows the dis-

ease 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. 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. Moreover, only a small

percentage of cervid farmers actually imports animals.

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 anes-

thesia 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. 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 system can be built for much less money.

Issue/Concern: Many commenters indicated that the interstate move-

ment 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.

Response: The Department still permits the importation of semen and

embryos from susceptible species, so there will still be means of introduc-

ing new bloodlines to New York captive deer herds, other than live animal

importations.

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 qual-

ity 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.

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.

Issue/Concern: A number of commenters questioned why zoos are

exempt from the requirements of the regulations.

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.

NYS Register/April 16, 2014Rule Making Activities

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