New York Register, Volume 35, Issue 44, October 30, 2013

• Jurisdiction: New York
• Library: New York Register
• Published date: 30 October 2013
• Year: 2013

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

EMERGENCY/PROPOSED

RULE MAKING

HEARING(S) SCHEDULED

Captive Cervids

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

Filing No. 993

Filing Date: 2013-10-15

Effective Date: 2013-10-15

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following action:

Proposed Action: 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 provides

that until November 15, 2013, cervids (deer, elk and moose) susceptible to

CWD may be moved into New York State, provided the Department has

received a completed application for movement prior to October 15, 2013;

the CWD susceptible cervids are moved from a herd which has achieved

CWD certified herd status; the state of origin has adopted mandatory

reporting and quarantine requirements equivalent to those in Part 68 of 1

NYCRR; and the CWD susceptible cervids are not from a CWD infected

zone. Effective November 16, 2013, 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 Com-

missioner shall hold hearings to reevaluate the risk and impacts of allow-

ing 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 af-

fecting 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 sup-

ported by most scientists is that TSE diseases are caused by proteins called

prions. The exact mechanism of transmission is unclear. However, evi-

dence 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

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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 and wild deer in Pennsylvania. Given the proximity

of this detection to New York and the apparent further spread of this dis-

ease 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

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until August 1, 2018 and requiring confinement and CWD testing of cap-

tive 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 nec-

essary 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.

Public hearing(s) will be held at: 12:00 p.m., Dec. 19, 2013 at Depart-

ment of Agriculture and Markets, 10B Airline Dr., Albany, NY.

Interpreter Service: Interpreter services will be made available to hearing

impaired persons, at no charge, upon written request submitted within rea-

sonable time prior to the scheduled public hearing. The written request

must be addressed to the agency representative designated in the paragraph

below.

Accessibility: All public hearings have been scheduled at places reason-

ably accessible to persons with a mobility impairment.

Text of emergency/proposed 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 excep-

tion 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 move-

ment 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, move-

ment 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 (c), (d), (e), (f) and (g) of section 68.3 of 1 NYCRR are

relettered subdivisions (d), (e), (f), (g) and (h); subdivision (b) is repealed

and a new subdivision (b) and a new subdivision (c) are added to read as

follows:

(b) Until November 15, 2013, CWD susceptible cervids from states

other than New York shall be approved for importation into New York

provided:

(1) a completed application for movement has been received by the

Department prior to October 15, 2013; and

(2) the CWD susceptible cervids are moved from a herd which has

achieved CWD certified herd status; and

(3) the state of origin has adopted mandatory reporting and quaran-

tine requirements equivalent to those set forth in this Part; and

(4) the CWD susceptible cervids are not from a CWD infected zone.

(c) From November 16, 2013 until August 1, 2018, all movements of

CWD susceptible cervids into New York State are prohibited except move-

ments to a zoo accredited by the Association of Zoos and Aquariums, 8403

Colesville Rd., Suite 710, Silver Spring, MD 20910-3314. No such move-

ments shall be made unless approved prior to the movement by the com-

missioner or his/her designee in consultation with the New York Depart-

ment of Environmental Conservation. Prior to August 1, 2018, the

commissioner will 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.

Subdivision (e) of section 68.3 of 1 NYCRR, as relettered subdivision

(f), is amended to read as follows:

[(e)] (f) 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 ade-

quate 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. Notwith-

standing this Part, all natural deaths must be submitted for CWD diagnosis.

Paragraph (2) of subdivision (c) of section 68.5 of 1 NYCRR is re-

pealed 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 move-

ments 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 prop-

erty; (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 as both a notice of emergency adoption

and a notice of proposed rule making. The emergency rule will expire

January 12, 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

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: Five days after the last scheduled

public hearing.

NYS Register/October 30, 2013Rule Making Activities

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