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

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 captive 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 effective 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 associated 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 captive 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 knowledge 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 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 similar 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 introduction 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 implementing 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 escaping from enclosures.

Issue/Concern: One commenter suggested that the State follow the standards 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 disease after it has been brought it into the State.

Issue/Concern: One commenter indicated that monitoring and inspection 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 disease 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 anesthesia 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 movement 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 introducing 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 quality 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.