The origin of CWD is unknown. The mode of transmission is suspected to be from animal to animal. The disease is progressive and always fatal. There is no live animal test for CWD, so it is impossible to determine whether a live animal is positive, nor is there a vaccine to prevent the disease. The incubation period is lengthy and 3 to 5 years of continued surveillance is needed with no new infection found before a herd can be declared free of CWD through quarantine. The United States Secretary of Agriculture has 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. On December 24, 2003, the USDA proposed CWD regulations establishing a Federal CWD Herd Certification Program and governing the interstate movement of captive deer and elk. The proposed Federal regulations permit herd owners to enroll in State programs that it determines are equivalent to the proposed Federal program. The Department believes that the State CWD herd certification program established by this rule is equivalent to the proposed Federal program.

New York State has 433 entities engaged in raising approximately 9,600 deer and elk in captivity with a value of several million dollars, and many of these entities have imported captive bred deer and elk from other states, including Wisconsin, a state with confirmed CWD. The rule repeals a prohibition on the importation of captive cervids susceptible to CWD and adopts a prohibition on the importation or movement of captive cervids into or within the State unless a permit authorizing such movement has been obtained from the Department prior to such importation or movement. Except for cervids moving directly to slaughter, permits shall be issued only for captive cervids that meet the health requirements established by the rule.

The rule establishes general health requirements for captive cervids, special provisions for captive cervids susceptible to CWD, requirements for CWD Certified Herd Program, requirements for a CWD Monitored Herd Program, requirements for approved susceptible cervid slaughter facilities, requirements for the importation of captive susceptible cervids for immediate slaughter and requirements for the management of CWD positive, exposed or suspect herds of captive cervids. This is an essential disease control measure that will help to prevent the introduction of CWD into New York State and permit it to be detected and controlled within the captive cervid population of the State.

The promulgation of this regulation on an emergency basis is necessary because further introduction and spread of CWD into and within New York State would be devastating from both an animal health and economic standpoint given the threat the disease poses to the approximately 9,600 captive deer in the State and the 433 entities which raise them.

Section 68.1 of 1 NYCRR sets forth definitions for “CWD susceptible cervid,” “CWD exposed cervid,” “CWD positive cervid,” “CWD negative cervid,” “CWD suspect cervid,” “CWD infected zone,” “captive,” “CWD Certified Herd Program,” “Cervid,” “Chronic Wasting Disease,” “Commingling,” “Department,” “Enrollment Date,” “Herd,” “Herd Inventory,” “CWD Herd Plan,” “CWD Herd Status,” “CWD positive herd,” “CWD Suspect herd,” “Special purpose herd,” “CWD Exposed herd,” “CWD certified herd,” “Official identification,” “CWD Monitored herd,” “Owner,” “Premises,” “CWD Premises plan,” “Quarantine,” “State animal health official,” “Status date,” “Official test,” “USDA/APHIS,” and “Certificate of Veterinary Inspection (CVI)”.

Section 68.2 of 1 NYCRR establishes general health requirements for captive cervids including requirements relating to mandatory reporting, the movement of captive cervids, enforcement, facilities, fencing, herd integrity, sample collection and premises location.

Section 68.3 of 1 NYCRR establishes special provisions for captive cervids susceptible to chronic wasting disease including requirements relating to importation, enrollment in the CWD Herd Certification program, Monitored herd program, licenses and permits issued by the Department of Environmental Conservation, fencing, premises inspection and record keeping.

Section 68.4 of 1 NYCRR establishes requirements for the CWD Certified Herd program including requirements for captive susceptible cervid operations engaged in breeding and/or the sale or removal of live cervids from the premises for any purposes, the establishment of a CWD herd status, sampling and testing, animal identification, annual physical herd inventory and additions to CWD Certified Herd program herds.

Section 68.5 of 1 NYCRR establishes requirements for CWD Monitored Herds including requirements for special purpose herds consisting of one or more susceptible cervids, sampling and testing, additions to CWD monitored herds, animal identification and permitted movement to an approved CWD slaughter facility.

Section 68.6 of 1 NYCRR establishes requirements for approved susceptible cervid slaughter facilities, including requirements for holding pens, sample retention and holding facilities, susceptible cervid offal disposal plans and inspection.

Section 68.7 of 1 NYCRR establishes requirements for the importation of captive susceptible cervids for immediate slaughter including requirements for source herds, permits, direct movement, samples, waste and slaughter.

Section 68.8 of 1 NYCRR establishes requirements for the management of CWD positive, exposed or suspect herds including premises quarantine, establishment of a herd plan, depopulation, cleaning and disinfection, future land use restrictions, restocking constraints and timeframes, fencing requirements, risk analysis, official herd quarantines, elimination of high-risk cervids within the herd, special fencing requirements and the disposal of carcasses.

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. Subdivision (10) of said Section provides that “feral animal” means an undomesticated or wild animal.

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 to control, suppress and eradicate such diseases and prevent the spread of infection and contagion. The Department's proposed repeal of 1 NYCRR section 62.8 and adoption of 1 NYCRR Part 68 will further this goal by preventing the importation of deer which may be infected with chronic wasting disease (CWD), and permitting CWD to be detected and controlled within the captive cervid population of the State.

3. Needs and Benefits:

CWD is an infectious and communicable disease of deer belonging to the Genus Cervus (including elk, red deer and sika deer) and the Genus Odocoileus (including white tailed deer and mule deer). CWD has been detected in free-ranging deer and elk in Colorado, Wyoming, Nebraska, Wisconsin, South Dakota, New Mexico, Illinois and Utah. It has been diagnosed in captive deer and elk herds in South Dakota, Nebraska, Colorado, Oklahoma, Kansas, Minnesota, Montana, Wisconsin and New York and the Canadian provinces of Saskatchewan and Alberta.

The origin of CWD is unknown. The mode of transmission is suspected to be from animal to animal. The disease is progressive and always fatal. There is no live animal test for CWD, so it is impossible to determine whether a live animal is positive, nor is there a vaccine to prevent the disease. The incubation period is lengthy and 3 to 5 years of continued surveillance is needed with no new infection found before a herd can be declared free of CWD through quarantine. The United States Secretary of Agriculture has 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.

New York State has 433 entities engaged in raising approximately 9,600 deer and elk in captivity with a value of several million dollars, and many of these entities import captive bred deer and elk from other states, including Wisconsin, a state with confirmed CWD. This rule repeals a rule that had prohibited, with certain exceptions, the importation of captive cervids susceptible to CWD and adopts a prohibition on the importation or movement of captive cervids into or within the State unless they are accompanied by a valid certificate of veterinary inspection and a permit authorizing such importation or movement has been obtained from the Department, in consultation with the New York State Department of Environmental Conservation. The rule establishes general health requirements for captive cervids, special requirements for captive cervids susceptible to CWD, requirements for a CWD Certified Herd Program, requirements for a CWD Monitored Herd Program, requirements for approved susceptible cervid slaughter facilities, requirements for the importation of captive susceptible cervids for immediate slaughter and requirements for the management of CWD positive, exposed or suspect herds of captive cervids. This is an essential disease control measure that will help to prevent the introduction of CWD into New York State, and permit it to be detected and controlled if it were to arise within the captive cervid population of 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. These farms produce venison with a value of approximately $1,300,000 per year. During 2002, 195 elk and 165 deer were imported into New York. The value of elk range from $500 to $2,000 per animal. The value of deer range from $50 to $1,500 per animal. Using the most recent annual import data, average values of $1,250 per animal for elk and $775 per animal for deer, the prior prohibition on the importation of captive cervids susceptible to CWD prevented the importation of 195 elk with a value of $243,750 and 165 deer with a value of $127,875 on an annual basis. It is not known how many captive cervids will meet the health requirements of 1 NYCRR Part 68 or otherwise qualify for importation or movement within the State of New York. The number and value of the captive cervids that will continue to be prohibited from importation will depend upon the extent to which the owners of herds of captive cervids outside the State comply with the requirements of 1 NYCRR Part 68.

Owners of captive cervids within New York State will incur certain costs as a result of this rule. The New York State Department of Environmental Conservation currently regulates 129 farms with whitetailed deer. DEC requires these farms to have an eight-foot fence, as does this rule. There are 82 farms with elk, red deer, sika deer or mule deer in the State that do not have whitetailed deer. Assuming that half of these farms do not have adequate fences, that they have an average of 20 adult cervids and a 160-acre square enclosure, it would require two miles of fence extensions to raise the fence to eight feet. Assuming the farms will use post extensions and wire or tape at a cost of $1.00 a foot, the cost to each of the 41 farms that will need to upgrade their fences will be $10,560. The cost of erecting a solid barrier or a second fence on a farm in an area of the State designated as CWD containment area is estimated to be approximately $1.00 per foot of fence for 7′ plastic mesh and $2.00 per foot for posts ($20 post every 10 feet) or $16,000 for two miles of fence. There are currently two cervid farms in the existing designated CWD containment area.

The rule also requires that captive cervid operations, with the exception of special purpose herds, have proper restraining facilities, chutes, gates and corrals to capture and restrain cervids for diagnostic testing and inventory. Assuming that the 30 farms that are currently tested have adequate handling facilities and that the 102 farms that are currently under tuberculosis quarantine will be special purpose herds, there are currently 79 farms that will need to upgrade their capture and restraint facilities. The owners of those farms will have to build catch pens and chutes at an approximate cost of $10,000 to $20,000 per farm.

Whitetailed deer experience a five to ten percent death loss when handled for purposes such as testing. The majority (1,975 out of 2,950) of captive whitetailed deer in the State are in quarantined premises and will not have to be handled. Handling the other whitetailed deer can be expected to produce a total death loss of 49 to 98 deer on 43 farms for a loss of $1,700 to $3,400 per farm per year, assuming the deer each have a value of $1,500.

The labor costs associated with the handling of captive cervids required by this Part will average three person days, or $250.00 per year. It is estimated that the recordkeeping associated with this rule will require less than one hour annually on the average farm.

The 102 herds designated as special purpose herds will require an area in which to keep, for testing purposes, the heads of captive cervids that have died. It is estimated that this will result in a one-time cost of $400 to $500 per farm.

(b) Costs to the agency, state and local governments:

There will be no cost to local government or the State, other than the cost to the Department. The cost to the Department will be between $500 and $1,000 per farm annually, or between $121,500 and $243,000 annually to carry out necessary inspections and to collect and process samples.

(c) Source:

Costs are based upon data from the records of the Department's Division of Animal Industry.

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:

The rule requires that captive cervids being imported or moved into or within New York State be accompanied by a movement permit. Such permits will be issued by the Department in consultation with the New York State Department of Environmental Conservation after a determination that the deer in question qualify for importation. A valid certificate of veterinary inspection must also accompany all cervids imported into New York State, with the exception of those moving directly to slaughter. Accurate records documenting purchases, sales, interstate shipments, intrastate shipments, escaped cervids and deaths (including divested cervids) will have to be established by herd owners and maintained for at least seventy-two months for all captive susceptible cervids. A report of the required annual inventory of CWD certified herds must be made and submitted to the Department. For each natural death, clinical suspect and cervid harvested from a CWD Monitored Herd, tag numbers must be entered into the CWD Monitored Herd record along with the corresponding information that identifies the disposition of the carcass. A CWD herd plan must be developed by each herd owner, in conjunction with the Department and USDA/APHIS officials containing the procedures to be followed for positive or trace herds that will be implemented within sixty days of a diagnosis of CWD.

7. Duplication:

None.

8. Alternatives:

Various alternatives, from the imposition of a total prohibition against the importation of all cervids, to no restriction on their importation were considered.

Due to the spread of CWD in other states and the threat that this disease poses to the State's captive deer population, the proposed rule was determined to be the best method of preventing the further introduction of this disease into New York State and permitting it to be detected and controlled if it were to arise within the State. It was concluded that a total prohibition against the importation of captive cervids susceptible to CWD was not necessary if health standards and a permit system were established. It was also concluded that a failure to regulate the importation of cervids was an alternative that posed an unacceptable risk of introducing CWD to the State's herds of captive cervids.

9. Federal Standards:

The federal government currently has no standards restricting the interstate movement of cervids due to CWD, but has proposed CWD regulations establishing a Federal CWD Herd Certification Program and governing the interstate movement of captive deer and elk. The proposed Federal regulations permit herd owners to enroll in State programs that are determined to be equivalent to the proposed Federal program. The Department believes that the State CWD program established by this rule is equivalent to the proposed Federal program.

10. Compliance Schedule:

It is anticipated that regulated parties can immediately comply with the rule.

1. Effect of Rule:

There are approximately 433 small businesses raising a total of approximately 9,600 captive cervidae (the family that includes deer and elk) in New York State. The rule would have no impact on local governments.

2. Compliance Requirements:

Regulated parties are prohibited from importing captive cervids, other than those moving directly to slaughter, without a valid certificate of veterinary inspection. In addition, regulated parties importing or moving captive cervids into the State or within the State for any purpose must first obtain a permit from the Department, in consultation with the New York State Department of Environmental Conservation, authorizing such movement.

Captive cervid operations, with the exception of special purpose herds, must have proper restraining facilities to capture and restrain cervids for testing, as well as storage facilities for samples.

Captive cervid operations must have a continuous barrier fence and maintain herd integrity.

Regulated parties will be able to import CWD susceptible cervids only if they are moved from a herd which has achieved CWD certified herd status and the state of origin has adopted mandatory reporting and quarantine requirements equivalent to those set forth in 1 NYCRR Part 68. Regulated parties may not hold CWD susceptible cervids in captivity in New York State unless they are enrolled in the CWD Certified Herd Program or the CWD Monitored Herd Program or have a license or permit issued by DEC pursuant to ECL section 11-0515.

Regulated parties with herds containing at least one CWD susceptible cervid must have a perimeter fence that is at least eight feet high. Captive CWD susceptible cervid facilities and perimeter facilities must be inspected and approved by a state or federal regulatory representative.

Regulated parties must keep accurate records documenting purchases, sales, interstate shipments, escaped cervids and deaths, including harvested cervids, and maintain them for at least sixty months for all captive CWD susceptible cervid operations. The owners of all CWD susceptible cervid herds enrolled in the CWD Certified Herd Program shall establish and maintain accurate records that document the results of the annual herd inventory.

All captive CWD susceptible cervid herds that are not special purpose herds or held at an approved CWD susceptible cervid slaughter facility must participate in the CWD Certified Herd program. Samples must be submitted for testing as required by the Program. For reasons of animal disease control, limiting potential contamination of the environment and benefiting trace back/trace forward activities the carcasses of animals that have been tested for CWD must be retained until it has been determined that the tests are negative for CWD. As of the first annual inventory after the effective date of 1 NYCRR Part 68, each herd member and herd addition shall have a minimum of two official/approved unique identifiers. At least one of these identification systems shall include visible identification. A physical herd inventory shall be conducted between ninety days prior to and ninety days following the annual anniversary date established based upon the CWD Certified Herd Program enrollment date. Cervids that were killed or died during the course of the year must be tested. A state or federal animal health official must validate the annual inventory. A report of the validated annual inventory containing all man-made identification of each animal must be submitted to the Department.

All special purpose herds consisting of one or more CWD susceptible cervid shall participate in the CWD Certified Herd Program. Samples shall be submitted for testing as required by the Program. Each herd addition must have a minimum of two official/approved unique identifiers affixed to the animal. Carcass and sample identification tags must be affixed to unidentified harvested captive cervids, natural deaths, and clinical suspects.

Direct movement from a CWD monitored herd to an approved CWD slaughter facility requires a permit from the Department prior to movement; all animals moved must be individually identified with an approved identification tag and all animals must be slaughtered within six days of the time the animals leave the premises of the CWD monitored herd.

Approved CWD susceptible slaughter facilities must have holding pens constructed to prevent contact with captive or free-ranging cervid populations. Sample retention and holding facilities must be adequate to preserve and store diagnostic tissues for seventy-two hours after slaughter. A CWD susceptible cervid offal disposal plan must be developed, implemented and approved by the Department in consultation with the Department of Environmental Conservation.

Herd owners, in conjunction with the Department and USDA/APHIS, must develop CWD herd plans for any CWD positive, exposed or suspect herd. Perimeter fencing adequate to prevent fence line contact with captive and free-ranging cervids must be established for all CWD positive herds and positive premises. The carcasses of CWD positive cervids that are depopulated shall be disposed of in accordance with disposal plans approved by the Department and USDA/APHIS.

The rule would 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.

4. Compliance Costs:

(a) Costs to regulated parties:

There are approximately 433 entities raising a total of approximately 9,600 captive deer in New York State. These farms produce venison with a value of approximately $1,300,000 per year. During 2002, 195 elk and 165 deer were imported into New York. The value of elk ranges from $500 to $2,000 per animal. The value of deer ranges from $50 to $1,500 per animal. Using the most recent annual import data, average values of $1,250 per animal for elk and $775 per animal for deer, it is estimated that the prior prohibition on the importation of captive cervids susceptible to CWD prohibited the importation of 195 elk with a value of $243,750 and 165 deer with a value of $127,875 on an annual basis. The number and value of the captive cervids that will be prohibited from importation as a result of this rule will depend upon the extent to which the owners of herds of captive cervids outside the State comply with the requirements of 1 NYCRR Part 68.

Owners of captive cervids within New York State will incur certain costs as a result of this rule. The New York State Department of Environmental Conservation currently regulates 129 farms with whitetailed deer. DEC requires these farms to have an eight-foot fence, as does this rule. There are 82 farms with elk, red deer, sika deer or mule deer that do not have whitetailed deer. Assuming that half of these farms do not have adequate fences; that these farms have on average 20 adult cervids and a 160-acre, square, enclosure, it would require 2 miles of extensions to raise the fence to eight feet. Assuming the farms will use post extensions and wire or tape, the cost to each of the 41 farms that will need to upgrade their fences will be $10,560, at $1.00 per foot. The cost of erecting a solid barrier or a second fence on a farm in an area of the State designated as a CWD containment area is estimated to be approximately $1.00 per foot of fence for 7′ plastic mesh and $2.00 per foot for posts ($20 post every 10 feet) or $16,000 for two miles of fence. There are currently two cervid farms in the existing designated CWD containment area.

The rule also requires that captive cervid operations, with the exception of special purpose herds have proper restraining facilities, chutes, gates and corrals to capture and restrain cervids for diagnostic testing and inventory. Assuming that the 30 farms that are currently tested have adequate handling facilities and that the 102 farms that are currently under tuberculosis quarantine will be special purpose herds, there are currently 79 farms with 1,646 deer that will need to upgrade their capture and restraint facilities. The owners of those farms will have to build catch pens and chutes at an approximate cost of $10,000 to $20,000 per farm.

Whitetailed deer experience a five percent to ten percent death loss when handled for purposes such as testing. The majority, 1,975 out of 2,950, of captive whitetailed deer in the State are in quarantined premises and will not have to be handled. Handling the other captive whitetailed deer in the State can be expected to produce a death loss of 49 to 98 deer on 43 farms for a loss of $1,700 to $3,400 per farm per year, assuming a $1,500 value per deer.

The labor costs associated with the handling of captive cervids required by this Part will average three person days or $250.00 per year per farm. It is estimated that the recordkeeping associated with this rule will require less than one hour each year on the average farm.

The 102 herds designated as special purpose herds will require an area in which to keep, for testing purposes, the heads of captive cervids that have died. It is estimated that this will result in a one-time cost of $400 to $500 per farm.

(b) Costs to the agency, state and local governments:

There will be no cost to local government or the State, other than the cost to the Department. The cost to the Department will be between $500 and $1,000 per farm annually, or between $121,500 and $243,000 to carry out necessary inspections and to collect and process samples.

(c) Source:

Costs are based upon data from the records of the Department's Division of Animal Industry.

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 of the importation of captive deer into New York State will have an economic impact on the entities that imported a total of 360 captive deer into New York State in 2002, 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. Captive deer imported into the State are already required to be accompanied by a health certificate. Endorsement of that certificate with the number of the permit issued by the Department presents no technological problem. The structural, recordkeeping and testing requirements of the rule involve existing technologies that are already in use.

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 by limiting the requirements to those which comply with the proposed USDA requirements for state CWD programs and which are necessary to prevent the introduction of CWD into New York State and permit it to be detected and controlled if it were to arise within the State. It was concluded that a total prohibition against the importation of cervids susceptible to CWD was not necessary, given the imposition of a permit system, health requirements and a CWD Certified Program. These requirements will protect the health of the State's captive cervid population, while giving herd owners access to healthy animals from states with comparable regulatory programs.

The rule would 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 approximately 433 deer owners known to the Department. In addition, the Department is notifying public officials and private parties of the adoption of the proposed rule on an emergency basis, as required by the State Administrative Procedure Act.

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.

2. Reporting, Recordkeeping and Other Compliance Requirements and Professional Services:

The rule requires that captive cervids being imported or moved into or within New York State be accompanied by a movement permit. Such permits will be issued by the Department in consultation with the New York State Department of Environmental Conservation after a determination that the deer in question qualify for importation. A valid certificate of veterinary inspection must also accompany all cervids imported into New York State, with the exception of those moving directly to slaughter. Accurate records documenting purchases, sales, interstate shipments, intrastate shipments, escaped cervids and deaths (including divested cervids) will have to be established by herd owners and maintained for at least seventy-two months for all captive susceptible cervids. A report of the required annual inventory of CWD certified herds must be made and submitted to the Department. For each natural death, clinical suspect and cervid harvested from a CWD Monitored Herd, tag numbers must be entered into the CWD Monitored Herd record along with the corresponding information that identifies the disposition of the carcass. A CWD herd plan must be developed by each herd owner, in conjunction with the Department and USDA/APHIS officials containing the procedures to be followed for positive or trace herds that would be implemented within sixty days of a diagnosis of CWD. All captive cervid locations shall be identified by a federal premises identification number issued by the Department and APHIS. The owner of the cervids must provide an adequate geographic location description and contact information in order to received a federal premises identification number. It is not anticipated that regulated parties in rural areas will have to secure any professional services in order to comply with the rule.

3. Costs:

(a) Costs to regulated parties:

There are approximately 433 entities raising a total of approximately 9,600 captive deer in New York State. These farms produce venison with a value of approximately $1,300,000 per year. During 2002, 195 elk and 165 deer were imported into New York. The value of elk ranges from $500 to $2,000 per animal. The value of deer ranges from $50 to $1,500 per animal. Using the most recent annual import data, average values of $1,250 per animal for elk and $775 per animal for deer, it is estimated that the prior prohibition on the importation of captive cervids susceptible to CWD prohibited the importation of 195 elk with a value of $243,750 and 165 deer with a value of $127,875 on an annual basis. The number and value of the captive cervids that will be prohibited from importation as a result of this rule will depend upon the extent to which the owners of herds of captive cervids outside the State comply with the requirements of 1 NYCRR Part 68.

Owners of captive cervids within New York State will incur certain costs as a result of this rule. The New York State Department of Environmental Conservation currently regulates 129 farms with whitetailed deer. DEC requires these farms to have an eight-foot fence, as does this rule. There are 82 farms with elk, red deer, sika deer or mule deer that do not have whitetailed deer. Assuming that half of these farms do not have adequate fences; that these farms have on average 20 adult cervids and a 160-acre, square, enclosure, it would require 2 miles of extensions to raise the fence to eight feet. Assuming that the farms will use post extensions and wire or tape, since at that height, only a visual barrier is needed, the cost to each of the 41 farms that will need to upgrade their fences will be $10,560, at $1.00 per foot. The cost of erecting a solid barrier or a second fence on a farm in an area of the State designated as a CWD containment area is estimated to be approximately $1.00 per foot of fence for 7′ plastic mesh and $2.00 per foot for posts ($20 post every 10 feet) or $16,000 for two miles of fence. There are currently two cervid farms in the existing designated CWD containment area.

The rule also requires that captive cervid operations, with the exception of special purpose herds have proper restraining facilities, chutes, gates and corrals to capture and restrain cervids for diagnostic testing and inventory. Assuming that the 30 farms that are currently tested have adequate handling facilities and that the 102 farms that are currently under tuberculosis quarantine will be special purpose herds, there are currently 79 farms that will need to upgrade their capture and restraint facilities. Since the Department currently owns three portable deer chutes, the owners of those farms will only have to build catch pens and chutes at an approximate cost of $10,000 to $20,000 per farm.

Whitetailed deer experience a five percent to ten percent death loss when handled for purposes such as testing. The majority, 1,975 out of 2,950, of captive whitetailed deer in the State are in quarantined premises and will not have to be handled. Handling the other captive whitetailed deer in the State can be expected to produce a death loss of 49 to 98 deer on 43 farms for a loss of $1,700 to $3,400 per farm per year, assuming a $1,500 value per deer.

The labor costs associated with the handling of captive cervids required by this Part will average three person days or $250.00 per year per farm. It is estimated that the recordkeeping associated with this rule will require less than one hour each year on the average farm.

The 102 herds designated as special purpose herds will require an area in which to keep, for testing purposes, the heads of captive cervids that have died. It is estimated that this will result in a one-time cost of $400 to $500 per farm.

(b) Costs to the agency, state and local governments:

There will be no cost to local government or the State, other than the cost to the Department. The cost to the Department will be between $500 and $1,000 per farm annually, or between $121,500 and $243,000 to carry out necessary inspections and to collect and process samples.

(c) Source:

Costs are based upon data from the records of the Department's Division of Animal Industry.

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 small businesses by limiting the requirements to those which comply with the proposed USDA requirements for state CWD programs and which are necessary to prevent the introduction of CWD into New York State and permit it to be detected and controlled if it were to arise within the State. It was concluded that a total prohibition against the importation of cervids susceptible to CWD was not necessary, given the imposition of a permit system, health requirements and a CWD Certification Program. These requirements will protect the health of the State's captive cervid population, while giving herd owners access to healthy animals from states with comparable regulatory programs.

5. Rural Area Participation:

In developing this rule, the Department has consulted with representatives of the approximately 433 deer owners known to the Department. In addition, the Department is notifying public officials and private parties of the adoption of the proposed rule on an emergency basis and of the proposed adoption of the rule on a permanent basis, as required by the State Administrative Procedure Act.

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 not known.

3. Regions of Adverse Impact:

The 433 entities in New York State engaged in raising captive deer are located throughout the rural areas of 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 introduction of CWD, this rule will help to preserve the jobs of those employed in this agricultural industry.

Public Comment: Comment was received expressing support of the regulations and the chronic wasting disease program it establishes.

Agency Response: The Department agrees with this comment.

Public Comment: Comment was received questioning whether section 68.1(h) of the regulation applies to all permits issued by the Department of Environmental Conservation under Environmental Conservation Law (ECL) § 1105.15.

Agency Response: Section 68.1(h) of the regulation applies to all permits issued under ECL § 1105.15.

Public Comment: Comment was received concerning the length of time between the emergency adoption of the regulations and the opportunity to submit public comment.

Agency Response: The Department published a notice of proposed rule making, notice of hearing and opportunity to submit comments in the State Register after the approval required to do so was received. In the interim it discussed the proposed regulations with representatives of the State's captive cervid industry and with officials of the New York State Department of Environmental Conservation, which also has promulgated regulations concerning chronic wasting disease.

Public Comment: Comment was received questioning the notice of public hearing that was given to those affected by the regulation.

Agency Response: The Department mailed notice of public hearing to the captive cervid farmers known to it and published a notice of proposed rule making in the State Register.

Public Comment: Comment was received indicating that some regulated parties do not understand the regulations and that there are no uniform methods and rules.

Agency Response: The Department has endeavored to draft the regulations using language that clearly sets forth the requirements that regulated parties are required to meet. The Department's Division of Animal Industry will continue to work with captive cervid farmers to help them understand and comply with the regulations. Farms are visited on an annual basis and the regulations that apply to each farm are explained to the deer owner. The regulations have been drafted to comply with proposed federal requirements and to ensure that New York certified herds will be accepted as such by other states and the federal government.

Public Comment: Comment was received indicating that the regulations have had a detrimental effect on the deer industry in New York State.

Agency Response: The Department believes that chronic wasting disease poses a serious threat to the continued viability of the captive cervid industry in New York State. The regulations are designed to prevent the introduction and spread of the disease and to do so in a way that minimizes, to the extent possible, the burden on regulated parties. In doing so, the regulations will help to ensure the continued viability of New York's captive cervid industry.

Public Comment: Comment was received noting that although the rule making indicates that a white-tail deer is worth between fifty and fifteen hundred dollars, the person submitting the comment had paid more than thirty thousand dollars for six animals.

Agency Response: The Department recognizes that individual animals can be worth more than the average prices set forth in the rule making documents.

Public Comment: Comment was received questioning the use of plastic fence in the cost estimate regarding compliance with the fencing requirement of the regulation.

Agency Response: The Department believes that the use of plastic fence provides a reasonable and cost effective means of complying with the fencing requirement. Plastic fence can be used as a visual barrier above woven wire to discourage deer from attempting to jump over the fence.

Public Comment: Comment was received regarding the lack of indemnity for the loss of animals associated with compliance with the regulations and contrasted that with the indemnity provided for tuberculosis.

Agency Response: The indemnity provided under the State and Federal tuberculosis programs is statutory in nature and does not provide indemnity for animals lost during testing.

Public Comment: Comment was received questioning the herd inventory requirements of the regulations.

Agency Response: The Department recognizes the difficulties and expense associated with conducting inventories of captive cervids, but believes that such inventories are an essential component of an effective disease control program.

Public Comment: Comment was received questioning the requirement that breaks in fences be promptly identified and repaired.

Agency Response: The Department believes that maintaining adequate fencing is essential to preventing the escape of captive cervids and the commingling of such cervids with wild deer. The separation of wild and captive deer is an important element of the CWD program implemented by the regulations.

Public Comment: Comment was received questioning exceptions made for scientific and breeding purposes.

Agency Response: The regulations have been drafted to allow reasonable movement of captive cervids in a manner consistent with preventing the introduction and spread of chronic wasting disease.

Public Comment: Comment was received asking that the regulations be revisited if it is determined that deer farms do not harbor chronic wasting disease.

Agency Response: The Department agrees that as more information about chronic wasting disease becomes available the regulations should be reviewed and, if necessary, revised to provide the best protection against the introduction and spread of CWD while minimizing, to the extent possible, the impact on regulated parties.

Public Comment: Comment was received suggesting that there should be no licensing of rehabilitators of animals in New York State.

Agency Response: The rehabilitation of wild animals falls under the jurisdiction of the New York State Department of Environmental Conservation. Certain wild deer, held in captivity for short periods of time, pursuant to DEC licenses have been exempted from the regulations. DEC has a surveillance program for wild deer in New York. The exempted wild deer are considered part of the wild population although temporarily captive and are monitored by DEC.

Public Comment: Comment was received questioning the cost to the State of the testing of animals by veterinarians.

Agency Response: The Department believes that the costs associated with this regulatory program are reasonable given the importance of preventing the introduction and spread of Chronic Wasting Disease within the State.

Public Comment: Comment was received suggesting that information should be available indicating the length of time farmers have been enrolled in the Chronic Wasting Disease Program.

Agency Response: The Department is in the process of evaluating past inventories of farms for purposes of providing their CWD certification status. It is developing a database to facilitate this process.

Public Comment: Comment was received inquiring whether the requirement in the regulations that an official test is a test approved by USDA APHIS and performed by a USDA approved laboratory applies to tests other than that for Chronic Wasting Disease.

Agency Response: This requirement in the regulation applies only to the test for Chronic Wasting Disease. Other tests are governed by the regulations relating to those test.

Public Comment: Comment was received inquiring as to where a listing of USDA approved laboratories could be obtained.

Agency Response: The Department and the USDA can provide a list of laboratories approved by the USDA.

Public Comment: Comment was received asking what additional testing is available in the event of a false positive is detected.

Agency Response: In the case of any positive, all relevant samples are retested at the National Veterinary Services Laboratory at Ames, Iowa which is the national reference laboratory for all transmissible spongiform encephalitities.

Public Comment: Comment was received questioning the requirement that records relating to purchases, sales, inter-state shipments, escaped cervids and deaths be kept for at least seventy-two months.

Agency Response: The keeping of these records is necessary in order to do trace backs and trace forwards in the event Chronic Wasting Disease is detected in a New York State captive cervid herd.

Public Comment: Comment was received suggesting that the testing of all animals that die a natural death should not be required.

Agency Response: The Department believes that the testing of captive cervids that die a natural death is an important component of a program to detect Chronic Wasting Disease.

Public Comment: Comment was received as to whether the identification second tag required by the regulations can be affixed at the time of the next annual inventory.

Agency Response: At each inventory, an animal must be identified with two tags. If an animal loses a tag, it does not have to be replaced until the next inventory or until the animal leaves the premises, whichever is earlier. The purpose of the second tag requirement is to avoid having to retag the animal immediately after it loses a tag.

Public Comment: Comment was received as to whether samples from a decomposed deer are appropriate Chronic Wasting Disease test samples.

Agency Response: An owner is required to notify the Department of the death of any susceptible animal over 16 months of age. The length of time after death that samples remain suitable for testing depends on environmental conditions. The Department and the laboratory will ascertain which samples remain suitable for testing.

Public Comment: Comment was received questioning whether the sixteen month requirement for the testing of susceptible cervids that die natural deaths is based on that age as the youngest age an animal has tested positive for Chronic Wasting Disease.

Agency Response: The longer that an animal has Chronic Wasting Disease the more likely it will test positive for the disease. Although the disease has been detected in younger animals, the sixteen month requirement was established several years ago as the most productive age at which to detect the disease.

Public Comment: Comment was received questioning the requirement that ten percent or thirty animals in special purpose herds must be tested.

Agency Response: The Department believes that the testing is necessary to detect Chronic Wasting Disease in New York State's captive cervid population. The testing protocol has been designed to provide a reasonable probability of detecting the disease without unduly disrupting captive cervid operations.

Public Comment: Comment was received indicating that it is an undue burden to prohibit, as of July 14, 2007, the sale of animals that do not have four year status.

Agency Response: The certification program was established in 2004. Herds without prior status that complied with the program achieved first year status that year, second year status in 2005, third year status in 2006 and fourth year status in 2007.

Public Comment: Comment was received indicating that the quarantining of land and animals in a containment area resulting from the detection of Chronic Wasting Disease places an undue constraint on farmers.

Agency Response: The Department believes that the quarantining of premises and animals in an area in which Chronic Wasting Disease has been detected is necessary in order to prevent the spread of Chronic Wasting Disease in the event of an outbreak.

Public Comment; Comment was received questioning whether Chronic Wasting Disease poses a serious enough threat to warrant the imposition of special requirements, such as additional fences, in the event of a Chronic Wasting Disease outbreak.

Agency Response: The Department believes that Chronic Wasting Disease poses a sufficient threat to the captive cervid industry, as well as to the wild white tail deer population, to warrant the preventative measures contained in the regulations.

Public Comment: Comment was received questioning the prohibition against the sale of captive cervid carcasses until they have tested negative for Chronic Wasting Disease.

Agency Response: The Department believes that it is important to ascertain the Chronic Wasting Disease status of susceptible captive cervids that have been sampled and tested before the carcasses of such animals are sold or donated.

Public Comment: Comment was received suggesting that to conform with USDA/APHIS testing protocol the term “not detected” be used rather than “not detected or negative” in referring to test results in which Chronic Wasting Disease is not detected.

Agency Response: The Department will consider making the technical change suggested.

Public Comment: Comment was received suggesting that a tonsil biopsy be used to detect Chronic Wasting Disease in place of the testing protocol provided for in the regulations.

Agency Response: The testing protocol provided for in the regulations is the protocol currently approved by the federal government to detect Chronic Wasting Disease. The tonsil biopsy is currently being evaluated on an experimental basis.

Public Comment: Comment was received suggesting that the cost of handling captive cervids will be much more than the $250.00 stated.

Agency Response: The cost estimates given are averages. The labor costs associated with handling captive cervids will vary depending upon the number of deer, how much they are accustomed to human contact and the design and construction of handling facilities.