PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 187 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 11-0521, 11-0903 and 11-0928
Subject:
Black bear feeding.
Purpose:
To reduce conflicts between bears and people.
Text of final rule:
Section 187.1 of 6 NYCRR is repealed and a new section 187.1 adopted as follows:
187.1 Black bear feeding.
(a) "Purpose." The purpose of this section is to protect public safety while conserving New York's black bear populations. The deliberate, intentional feeding of black bears is prohibited. The incidental, indirect feeding of black bears becomes unlawful once a written warning has been issued by the department.
(b) "Definitions."
(1) "Feeding" means using, placing, giving, exposing, depositing, distributing or scattering any material to attract one or more black bears to feed on such material.
(2) "Incidental or indirect feeding" means using, placing, giving, exposing, depositing, distributing or scattering any material for a different purpose but which attracts one or more black bears. This includes storage of garbage or refuse and use and storage of birdseed in a manner that is accessible to black bears.
(c) Prohibited activities. It is a violation for any person to:
(1) Feed black bears, except as authorized by section 187.2 of this Part;
(2) Incidentally or indirectly feed black bears after the department has issued a written notice to the person or persons directly responsible for the incidental or indirect feeding of a black bear.
Section 187.2 of 6 NYCRR is repealed and a new section 187.2 adopted as follows:
187.2 Training of dogs on black bears.
(a) "Purpose." The purpose of this section is to allow the use of certified black bear tracking dogs by persons possessing a black bear tracking dog license issued by the department.
(b) "Definitions."
(1) "Certified black bear tracking dog" means a dog that is used to track, trail, pursue and tree black bears pursuant to a black bear tracking dog license, issued as provided by this section; that is licensed, collared, identified and vaccinated against rabies in accordance with the Agriculture and Markets Law; and that is one of the following breeds or a cross among these breeds: Airedale, American Black and Tan Coonhound, Bluetick Coonhound, Majestic Tree Hound, Mountain Cur, Leopard Cur, English Coonhound, Plott Hound, Redbone Coonhound, Treeing Walker, Black Mouth Yellow Cur, and Karelian Bear Dog.
(2) "License" means a black bear tracking dog license issued pursuant to this section, authorizing the use of certified black bear tracking dogs as specified in this section and subdivision 6 of section 11-0923 of the Environmental Conservation Law.
(3) "Licensee" means a person who is the holder of a black bear tracking dog license.
(4) "Agent" means any person authorized by the licensee to place baits to attract a black bear, who is listed on the licensee's agent list, and who possesses a copy of the license.
(5) "Relaying" means the act of replacing dogs or a pack of dogs during a chase or pursuit of a black bear.
(6) "Reversible attractants" means conditions that attract black bears where the conditions can be removed, made unattractive, or inaccessible to black bears.
(c) Black bear tracking dog license.
(1) Qualifications. An applicant for a license must:
(i) Possess a current license authorizing the applicant to hunt black bear in New York; and
(ii) Not have been convicted of, pled guilty to, or settled by civil settlement or otherwise for, the illegal taking of a black bear or the illegal sale of black bear parts within the last five years.
(2) Issuance. Applicants who meet the qualifications for a license must submit a completed, signed application and:
(i) a $25 fee for a license valid for one year; or
(ii) a $100 fee for a license valid for five years.
(3) Entitlements.
(i) A black bear tracking dog license issued by the department entitles the licensee to train and use certified black bear tracking dogs to track, trail, pursue and tree black bears, including the placement of bait to attract bears, from July 1 until nine days before the opening of any bear hunting season in the Zone (Northern or Southern Zone) where certified black bear tracking dogs are being used. The licensee must also possess a current license authorizing him or her to hunt black bear in New York. A licensee may also assist with controlling damage caused by black bears as provided in subdivision (e) of this section.
(ii) Residents of any age and non-residents under the age of 18, who have not been issued a black bear tracking dog license and have not been convicted of, pled guilty to, or settled by civil settlement or otherwise for, the illegal taking of a black bear or the illegal sale of black bear parts within the last five years may accompany a licensee during the training and use of certified black bear tracking dogs to track, trail, pursue and tree black bears. They may also act as an agent of the licensee to place baits pursuant to subdivision (d) of this section.
(iii) Non-residents 18 years old and older who have not been issued a black bear tracking dog license, but do possess a current New York license authorizing black bear hunting, and have not been convicted of, pled guilty to, or settled by civil settlement or otherwise for, the illegal taking of a black bear or the illegal sale of black bear parts within the last five years, may accompany a licensee during the training and use of certified black bear tracking dogs to track, trail, pursue and tree black bears. They may also act as an agent of the licensee to place baits pursuant to subdivision (d) of this section.
(4) Conditions.
(i) No person may capture, take, kill or attempt to kill a black bear with the aid of a dog except by permit issued pursuant to subdivision 1 of Section 11-0521 of the Environmental Conservation Law.
(ii) No person may possess a longbow, crossbow, pistol, rifle, shotgun or firearm of any kind while using dogs to track, trail, pursue or tree a black bear except under a permit issued pursuant to subdivision 1 of section 11-0521 of the Environmental Conservation Law.
(iii) Black bear tracking dog training hours will be from one half hour before sunrise to sunset.
(iv) Only certified black bear tracking dogs may be used to track, trail, pursue or tree black bears.
(v) At least two but no more than eight certified black bear tracking dogs must be used to track, trail, pursue or tree black bears, except an additional four certified black bear tracking dogs may be brought to the tree for purposes of training after the chase has ended and the black bear is treed.
(vi) No relaying of packs or dogs is allowed when tracking black bear.
(vii) Each black bear tracking dog must have a tag which includes the owner's name, address, and telephone number.
(viii) No more than 12 people may accompany a pack of dogs during the tracking, trailing, pursuit or treeing of black bears.
(ix) At least one person accompanying the pack must be a licensee.
(x) No licensee may release dogs after a black bear when the reported ambient air temperature is above 85 degrees Fahrenheit.
(xi) Licensees will make every effort to end any black bear chase or to remove their dogs and leave a treed black bear whenever the reported ambient air temperature is above 90 degrees Fahrenheit or when the black bear is panting.
(xii) Licensees must complete and return any survey, questionnaire, agent list or daily diary requested by the department.
(xiii) Licensees will maintain a list with names and addresses of agents who are authorized to place baits and provide all agents with a copy of their license.
(xiv) Licensees will maintain a map or list of GPS coordinates of all bait locations and show this map or coordinate list to any department official upon request;
(xv) Licensees will identify each bait site with their 12-digit Department of Environmental Conservation Automated Licensing System (DECALS) identification number or their name and address clearly legible on a metal tag, plastic tag, stake, or container for bait;
(xvi) The department may at any time amend license conditions establishing reporting requirements. Licensees will be notified in writing of any license condition amendments and the period of time during which they are in effect.
(xvii) Licensees and their agents will cease placing baits when notified by the department that such baits are creating a nuisance.
(d) "Deployment of bait used for black bear tracking dog training." It is a violation for any licensee or agent to:
(1) place any bait within 500 feet of any occupied building (unless the building is owned or leased and occupied by that person), school, playground, paved public road, trailhead, designated or established campsite, landfill, dump or municipal waste transfer site or dumpster;
(2) place any bait within 100 feet of any other building, any unpaved public road or trail, or body of water;
(3) place any bait or use any substance containing metal, glass, plastic, paper, cardboard or porcelain;
(4) place any bait during any time period other than the black bear tracking dog training season as defined in subdivision (c) of this section;
(5) act as an agent of the licensee unless the person:
(i) is listed on the licensee's agent list;
(ii) has agreed to the conditions and signed a copy of the license;
(iii) carries that copy of the license on their person when placing bait;
(iv) follows all other conditions of the license.
(6) fail to remove all baits by the close of the black bear tracking dog training season as defined in subdivision (c) of this section.
(e) "Deployment of black bear tracking dogs pursuant to a chase permit."
(1) In addition to training seasons established by this section, the department may also issue permits to chase nuisance black bears with trained, certified black bear tracking dogs when all of the following conditions are met:
(i) The department receives a complaint of damage to property or threat to public health or safety caused by one or more black bears;
(ii) The department examines the evidence of damage or threat and identifies any reversible attractants and all practical non-lethal control methods for the complainant;
(iii) The complainant has removed any reversible attractant and tried all practical non-lethal control methods, but the damage or threat continues;
(iv) The department determines that tracking dogs are essential to manage the nuisance black bear or bears.
(2) The department may issue a permit to destroy the nuisance black bear if there is a strong likelihood that the nuisance black bear can be identified. This destroy permit may, at the department's discretion, include the use of trained, certified black bear tracking dogs to tree the black bear for identification prior to destruction.
(3) After the above conditions are met, chase and destroy permits may be issued by the department at any time and any place.
(4) Nothing in this section may be construed to prohibit the use of dogs by the department or by persons authorized by the department pursuant to Environmental Conservation Law section 11-0515 or 11-0521 to aid in the capture or taking of black bears for management or research purposes or damage abatement.
Final rule as compared with last published rule:
Nonsubstantial changes were made in sections 187.1(b)(1), (c)(1), 187.2(c)(3), (4), (d)(4) and (e)(2).
Text of rule and any required statements and analyses may be obtained from:
Gordon R. Batcheller, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, (518) 402-8885, email: wildliferegs@gw.dec.state.ny.us
Additional matter required by statute:
A programmatic environmental impact statement is on file with the Department of Environmental Conservation.
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
The original Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement as published in the Notice of Proposed Rule Making remains valid, and does not need to be amended to reflect the changes made to the text of the regulation.
Assessment of Public Comment
The Department of Environmental Conservation (DEC or department) received approximately 35 copies of a form letter and 45 individual letters or emails with both supportive and critical comments on the proposal, several of which offered general support or opposition without explanation. A summary of the substantive comments, and the department's response follows:
Comment:
The proposed regulation is an appropriate and responsible action, which will improve public safety and result in a healthier and less habituated bear population. The proposed amendment is a reasonable solution to help control home owners from intentionally and inadvertently feeding bears.
Response:
The department agrees.
Comment:
The proposed inclusion of additional breeds of dogs and expansion of the areas open for training of dogs on bears is a good idea. This proposal should help reduce some of the property damage by bears that occurs outside the current training area.
Response:
The department agrees.
Comment:
The current regulation allows the feeding of bears up to nine days prior to the opening of the bear hunting season. This should be continued to enable successful hunting. The proposed regulations would remove a means of population control and be counter-productive to decreasing human-bear conflicts. Further, the proposed regulation will harm small businesses that rely on guided bear hunts for a significant part of their annual income.
Response:
Some hunters and guides apparently misconstrued the previous bear feeding regulation as if it allowed pre-baiting of black bears for the purpose of improving bear harvest success. In the examples provided to the department, hunters or their guides would establish a bear feeding site and remove the food nine days prior to the start of bear hunting season, in accordance with the regulation. These hunters or guides would then maintain the site attractiveness to bears by lawfully dispensing liquid scent or lure through the nine days prior to and during the bear hunting season. While the placement of food and dispersal of scent may have been conducted lawfully, the department asserts that the activity was clearly intended to condition bears to a "pre-established bait pile" for the purpose of hunting. This intention is further evidenced by the concern expressed by several hunters and licensed guides about the potential impact of this rule making on their bear hunting success.
The department acknowledges that the use of bait to hunt bears is an effective technique and, though presently unnecessary, may be of value to the department for black bear management at some point in the future. However, currently in New York, hunting black bear with the aid of a pre-established bait pile is expressly prohibited by New York State Environmental Conservation Law (ECL) 11-0901.
Therefore, the department contends that this rule making will not impact lawful hunting of black bears and any impact on hunter success or small business owners is a natural consequence of realigning hunting and business practices with existing statutes.
Use of scents or lures (by hunters or others) that are not intended to attract bears to consume such materials will still be allowed under the amended regulation.
Comment:
The primary problem is with campers who do not follow appropriate practices for storing food, or who directly feed bears. The proposal will not solve conflicts between campers and bears, but it will reduce hunting success in the Adirondacks, and this could increase those conflicts.
Response:
This rule making continues to provide a mechanism to restrict bear access to human supplied food sources at frontcountry and backcountry camping sites. Furthermore, by prohibiting direct feeding of bears and clarifying regulations regarding incidental or indirect feeding of bears, this rule making will secure greater enforcement authority for situations where direct feeding of bears leads to or increases conflicts between campers and bears.
Comment:
It is unfair to continue to allow houndsmen to feed bears for training dogs, while prohibiting it for hunters.
Response:
The department considers the training of dogs on black bears to be a legitimate activity with direct public benefit by helping to resolve nuisance bear problems, and the use of bait facilitates effective and efficient training. However, as indicated previously, use of bait for hunting is prohibited by New York State statute.
Comment:
Several comments were submitted with concern that the proposed regulations will restrict use of back yard bird feeders or potentially cause a person to be in violation if a bear feeds in a home garden.
Response:
This rule making specifies that incidental or indirect feeding of black bears is prohibited only after the department has issued a written notice to the responsible person or persons. Such flexibility allows the public to enjoy feeding birds, but also affords the department authority to require removal of incidental bear attractants when necessary. Additionally, the department generally encourages the public to discontinue bird feeding activity in spring when bears emerge from their dens and natural foods for bears are not abundant.
Comment:
The proposed regulation will harm trappers who use baits to capture furbearers, and because the department may be unable to distinguish between a bait station set for bears and a legitimate trap set, tickets may be written inappropriately. In particular, "pre-baiting" is an important technique for capturing fisher and raccoons; bait piles are often used to attract coyotes and fox.
Response:
There is no conflict between the lawful activities associated with furbearer trapping and this rule making. Similar to feeding birds, the use of baits or lures for furbearer trapping is of a different purpose than attracting bears. If bears are attracted to the baits or lures used in furbearer trapping, this could constitute incidental or indirect feeding of bears, which is prohibited only after the department has issued a written notice to the responsible person or persons.
Comment:
Enforcement of the current regulations should be emphasized before adding new restrictions. The proposed regulations will be difficult to enforce and will take away from the real job of our conservation officers.
Response:
Department wildlife and law enforcement staff currently work diligently to enforce black bear feeding regulations. However, this rule making will aid enforcement by prohibiting the feeding of bears in general statewide to protect public health and safety, with exceptions allowed only in those limited instances where needed for research and management purposes.
Comment:
DEC's current bear feeding regulation eliminates potentially problematic associations by simply prohibiting feeding or placement of bait near homes, buildings, roads, playgrounds, campsites, etc. via setbacks. The existing regulation works well when people follow the regulation. DEC's proposal to expand the feeding prohibition is unnecessary and misguided.
Response:
Department wildlife and law enforcement staff have identified situations where intentional feeding of bears was conducted in accord with existing regulations but in relative close proximity to high human-bear conflict areas. In these circumstances, the feeding activity maintained a high frequency rate of bears using the area and exacerbated food conditioned behavior of bears, confounding efforts to reduce human-bear conflicts in the area. This rule making is a necessary and sensible approach to reduce bear conditioning to human-supplied food sources and problematic associations that may result.
Comment:
The proposed regulations will place a handicap on legitimate photographers and others who are respectful of the existing regulation.
Response:
The department recognizes that some photographers may prefer to use small food stations to enhance their success in photographing black bears but considers the general prohibition on feeding bears to be of greater importance. Photographers may continue to seek wild bears by identifying marking trees, den locations, day bed areas, routine bear crossings over beaver dams or other key topographic features, or high use areas with abundant natural food. Additionally, use of scents or lures (by photographers or others) that are not intended to attract bears to consume such materials will still be allowed under the amended regulation.
Comment:
This blanket prohibition on feeding bears is the sort of intrusive hyper-regulation that makes so many people angry with the government.
Response:
The department is mandated to manage wildlife with consideration of public safety. Furthermore, the department has specific statutory authority to regulate the intentional and incidental feeding of black bears. Heretofore, the department allowed feeding under limited circumstances. Yet, as bear populations have increased in number and distribution in New York, the department now considers a general prohibition on the feeding of black bears to be a prudent and reasonable measure to reduce bear habituation to human supplied foods and thereby reduce human-bear conflicts.
Comment:
This proposal is contrary to the legislative intent that gave DEC authority to regulate feeding of bears.
Response:
In 1993, the new legislation authorized the department to regulate the intentional and incidental feeding of black bears. Bear populations have increased in number and distribution in New York since the early 1990s, and the department considers a general prohibition on the feeding of black bears to be a prudent and reasonable measure to reduce bear habituation to human supplied foods and thereby reduce human-bear conflicts.
Comment:
The proposed regulation should be amended to expand training hours from one half hour before sunrise to one half hour after sunset.
Response:
The department believes the current time frame (one half hour before sunrise to sunset) is sufficient for effective training of dogs to track black bear.
Comment:
The current and proposed regulations require two or more chases pursuant to a chase permit before the department may issue a permit to destroy the nuisance black bear. This "three strikes" policy is overly protective and causes unnecessary financial suffering of farmers.
Response:
The department concurs and has modified the text by removing reference to, "If, after two or more chases, pursuant to a chase permit, the damage or threat still continues," in Section 187.2(e)(2). The amended language continues to allow the department to exercise discretion for issuance of a chase permit or a chase permit in conjunction with a destroy permit to reduce a threat to public health or agricultural or property damage caused by bears.
Comment:
To protect dogs from coyote attacks, houndsmen should be permitted to carry handguns while training on bear. Houndsmen need the ability to either protect their dogs from coyotes or humanely dispatch a dog that has sustained damage from a bear or coyote.
Response:
The department believes that houndsmen must assume some risk to their dogs when releasing them to track bears and that the existing restriction on carrying firearms is appropriate.
Comment:
The proposed regulation seems to rule out putting baits near game cameras.
Response:
Correct. The use of baits to attract bears will be prohibited for this purpose. However, use of scents or lures (by photographers or others) that are not intended to attract bears to consume such materials will also be allowed under the amended regulation.
Comment:
The regulation describing which breeds of dogs may be used to train on bears should allow for a cross among breeds or include other breeds such as the German Jagdterrier.
Response:
Existing regulations allow for crossbreeds among the list of dog breeds designated as certified black bear tracking dogs. This rule making has expanded the list of breeds to include Black Mouth Yellow Cur and Karelian Bear Dogs which are commonly used to trail and tree bears in other areas. While the German Jagdterrier is used occasionally in other areas for hunting bears, the listed breeds are more adept at trailing and treeing bears.
Comment:
Human-bear conflicts take place in close proximity to structures and roadways. Increasing the buffer distances to 2,000 feet from a dwelling and 1,000 feet from a highway would accomplish the objective of reducing human-bear conflict without negatively impacting sporting opportunities of bear hunters.
Response:
The department considered adjustments to the setback distances for bear feeding, but this would perpetuate opportunities for black bears to become conditioned to human supplied food sources. Additionally, as has been previously stated, in light of existing statute, the feeding of bears prior to hunting season as a means to increase hunting success is not lawful.
Comment:
Houndsmen should be permitted to maintain a list of bait locations with GPS coordinates rather than a map to comply with the regulations' mapping requirement.
Response:
The department agrees that maintaining a list of GPS coordinates of bait locations is sufficient for recordkeeping and site identification. The text of section 187.2(c)(4)(xiv) has been amended to accommodate this request.
Comment:
Use of bait by houndsmen may be unnecessary.
Response:
Some houndsmen may train their dogs in areas where bear densities and road networks are sufficient for their hounds to readily strike bear scent without the need of bait stations. However, those conditions do not exist in all parts of New York. Bait stations allow dog handlers to select safe, workable locations and guarantee that inexperienced hounds are being trained to follow the scent of bears rather than other wildlife.
Comment:
The DEC should allow hunting bears with hounds or a limited lottery for hunting bears with bait.
Response:
This rule making is not associated with black bear hunting regulations. The New York State ECL prohibits use of bait or hounds for hunting black bear.
Comment:
Houndsmen should be allowed to place bait within 500 feet of structures when permission is granted by the owner.
Response:
The department believes the proposed rule making provides sufficient flexibility for houndsmen to select safe locations to train their dogs to track bears without placing baits in close proximity to structures on private property other than those owned by the licensee or agent.
Comment:
Bear dog tracking license holders and their agents should not be required to keep additional paperwork while tending a bait site or maintain a map of bait site locations.
Response:
This rule making requires licensees and agents to maintain a list of agents who may place baits, carry a copy of the license while placing baits, and maintain a map or list of GPS coordinates of all bait locations. Such requirement is not an onerous burden on licensees or agents and will help law enforcement officers distinguish between legitimate baiting activity associated with licensed dog training and illicit feeding activity.
