This regulatory impact statement, regulatory flexibility analysis, rural area flexibility analysis and/or job impact statement pertain(s) to a notice of Emergency rule making, I.D. No. AAM-34-18-00001-EP, printed in the State Register on August 22, 2018.

1. Statutory authority:

Section 18(6) of the Agriculture and Markets Law (“A&ML”) provides, in part, that the Commissioner of Agriculture and Markets (“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 of Agriculture and Markets (“Department”).

Section 72 of the A&ML 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. That section also provides that whenever any infectious or communicable disease affecting domestic animals shall exist or have recently existed outside the State, the Commissioner shall take measures to prevent such disease from being brought into the State.

Section 74 of the A&ML authorizes the Commissioner to adopt rules and regulations relating to the importation of domestic or feral animals into the State.

2. Legislative objectives:

The proposed rule will amend 1 NYCRR section 68.3(b) to extend the prohibition upon the importation of cervids susceptible to contracting Chronic Wasting Disease (“CWD”) from the date that the prohibition is currently scheduled to expire (i.e. on August 1, 2018), to August 1, 2023.

By enacting the statutes set forth above, the legislature intended to prevent infectious or communicable diseases, affecting, inter alia, wild and domestic cervids, from being brought into the State. The proposed rule would further this legislative goal by extending the prohibition upon the importation of live CWD susceptible cervids from outside of the State, as more fully set forth above.

3. Needs and benefits:

The proposed rule is needed to inhibit the spread of CWD into the State’s wild and domestic cervid population. CWD is a progressive, uniformly fatal, degenerative neurological disease of captive and free-ranging susceptible cervid species. It was first recognized in 1967 as clinical wasting syndrome of unknown cause in captive mule deer in Colorado. CWD belongs to the family of diseases known as transmissible spongiform encephalopathies (“TSE”). The name derives from the pin-point sized holes in brain tissue of infected animals which gives the tissue a sponge-like appearance. TSEs include several different diseases affecting animals and humans including bovine spongiform encephalopathy (“BSE”) in cattle, scrapie in sheep and goats, and Creutzfeldt-Jacob disease (“CJD”) in humans. Although CWD shares certain features with other TSEs, it is a distinct disease affecting only certain cervid species. There is no known treatment, vaccine nor reliable antemortem diagnostic test for CWD.

The origin of CWD is unknown. The agent that causes CWD and other TSEs has not been completely characterized; however, the theory supported by most scientists is that TSE diseases are caused by proteins call prions. The exact mechanism of transmission is also unclear although the evidence suggests that, as an infectious and communicable disease, CWD is transmitted directly from one animal to another through saliva, feces and urine containing abnormal prions shed in those body fluids and excretions. There is also evidence to suggest that the landscape can become contaminated with prions excreted from infected animals -- this contamination can lead to infection through an environmental route.

The species known to be susceptible to CWD are, inter alia, 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. Due to the long incubation period of 1 to 5 years, cervids infected with CWD may not manifest clinical signs yet still shed prions for a number of years after exposure and infection. As the disease progresses animals with CWD show changes in both appearance and behavior including 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 Department of Agriculture (“USDA”) has an established CWD eradication program that is administered through the states. Despite these efforts, CWD has been detected in cervids in a number of states, as well as in three Canadian provinces. During the last year, USDA identified ten new CWD-positive captive cervid herds in the United States, including one in Lancaster County, Pennsylvania.

The proposed rule will continue the prohibition upon the importation into the State of CWD-susceptible cervids, until August 1, 2023. The proposed rule is needed to protect the State’s wild and captive cervid populations from CWD. Presently, the Department believes that the State’s cervid population is free of CWD and that status is due, in great part, to the prohibition upon importation of CWD-susceptible cervids that has been in place since August 1, 2013.

The State’s cervid farmers and those who hold cervids on their property (“cervid farmers”) will benefit from adoption of the proposed rule. Currently, there are approximately 311 cervid farmers in the State; approximately 240 of whom raise cervids defined as susceptible to CWD. The proposed rule will benefit such cervid farmers by helping to ensure that their cervids do not contract CWD which, if that were to happen, could result in depopulation of their herds and a substantial loss of income.

The State’s hunters will also benefit by adoption of the proposed rule. During the 2016 hunting season, approximately 213,000 cervids were harvested; the proposed rule, if adopted, will help to ensure that cervid hunting remains a vital component of the State’s agricultural economy.

4. Costs:

(a) Costs to regulated parties:

The proposed rule will most directly affect the State’s cervid farmers. At this time it is unknown whether such farmers will incur a cost associated with the extension of the prohibition upon the importation of CWD-susceptible cervids.

As set forth above, there are approximately 311 cervid farmers located in the State; prior to the imposition of the prohibition upon importation, referred to above, only approximately 25 such cervid farmers actually imported susceptible cervids. Those cervid farmers who would want to import such cervids would not incur a cost to stock or replenish his/her herd if he/she, simply put, allows bucks to have access to does. If, however, that is not a preferred option, one measure of costs would be the difference between the cost of artificial insemination compared to the cost of importing a CWD-susceptible cervid; because the cost of each option is variable, it is impossible to determine that one option is necessarily more expensive than the other.

Another measure of cost is the difference in cost between a CWD-susceptible cervid raised in the State and such a cervid, of the same age, gender, and genetic background, raised out-of-state. Prices for captive bred cervids vary tremendously by species, age, sex, and the physical attributes of the cervids in question. Whitetail deer does for breeding may sell for $4,000 to $25,000. Prices for good quality breeding males range more widely, from $25,000 to well over $100,000 per head. Animals purchased for the purpose of stocking a shooting operation generally command lower prices. It is the Department’s understanding that one of the main concerns of some New York captive deer operations is that they have no access to inexpensive “shooter bucks” from neighboring states, especially Pennsylvania. In talking with a prominent New York cervid farmer we learned that there may be more concern about the reduced selection of animals available for purchase, due to the importation ban, than the price difference of in-state versus out-of-state animals. This concern may be addressed at least in part by the fact that embryos for embryo transfer and semen for artificial insemination may still be imported and these are both viable ways to introduce new genetics into a cervid herd. From January 1, 2011 to March 29, 2013 (the years before the prohibition upon the importation of CWD-susceptible cervids was instituted), approximately 25 cervid owners purchased approximately 400 cervids from out-of-state; it is anticipated that approximately the same number of cervid farmers would, presently, purchase no more than approximately the same number of cervids, in the absence of a prohibition upon importation.

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

None.

5. Local government mandates:

None.

6. Paperwork:

None.

7. Duplication:

Title 9 of the Code of Federal Regulations (“9 CFR”) Part 81 prohibits a farmed or captive cervid from being moved in interstate commerce unless it is from a herd certified as CWD-free and unless it does not show clinical signs associated with CWD.

8. Alternatives:

The Department considered four options relevant to the importation of CWD-susceptible cervids into the State; that is:

1) to discontinue the prohibition upon the importation of such cervids; or

2) to make the prohibition permanent; or

3) to modify the presently-existing prohibition to allow limited importations with conditions in addition to the animals’ being qualified under the federal herd certification program.

4) to extend the prohibition for another five-year period (that is, until August 1, 2023).

The first alternative was to allow the prohibition upon the importation of CWD susceptible cervids to lapse. This alternative was rejected because such prohibition has proven effective in preventing CWD from noticeably infecting the State’s wild and captive cervid populations. Furthermore, allowing the ban to lapse, especially at this time, would be irresponsible in light of the continued spread of CWD throughout the United States, including in an adjacent state, and in several Canadian provinces.

The second alternative was to make the prohibition upon importation permanent. However, that alternative was rejected in light of the possibility that an effective ante-mortem test for CWD may be developed that would allow for importation, albeit only after such a test is administered. As such, the Department believes that a prohibition upon importation, without an end date, would be inappropriate.

A third alternative involves live animal testing for CWD. Tonsillar and rectal mucosa biopsy and histologic techniques have advanced greatly in the past year and their increasing reliability make them worthy of consideration as possible adjuncts to the federal CWD program’s certifications when live animals are prospects for importation. We need to learn more about these tests and we look forward to having such discussions with industry, other stakeholders, and laboratories.

The fourth alternative, and the one ultimately chosen, was to extend the prohibition upon importation, until August 1, 2023. This alternative meets the current biosecurity needs of the State and allows for flexibility with the potential advancement of science. This alternative is supported by a number of cervid farmers, wildlife biologists, and other governmental agencies.

9. Federal standards:

9 CFR Part 81 regulates the interstate movement of cervids but, in section 81.6, allows the states to adopt regulations that are more restrictive than the requirements set forth in that Part.

10. Compliance schedule:

The rule will be effective upon filing with the Department of State.