ENV-40-07-00001-E Setting of Body Gripping Traps on Land

10/3/07 N.Y. St. Reg. ENV-40-07-00001-E

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 40

October 03, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY RULE MAKING

 

I.D No. ENV-40-07-00001-E

Filing No. 988

Filing Date. Sept. 13, 2007

Effective Date. Sept. 13, 2007

Setting of Body Gripping Traps on Land

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of section 6.3 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 11-1101 and 11-1103

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

These amendments to the department's trapping regulations are intended to prevent the accidental capture, injury, or killing of dogs in body gripping traps primarily set to catch fisher or raccoons. The regulations will immediately enhance the general welfare by improving the selectivity of trapping when body gripping traps are used. Specifically, the potential for dogs to be captured, injured or killed in these traps will be reduced.

The department first proposed a regulation to address this issue on May 30, 2007 (ENV-22-07-00010-P) and received a large number of comments during the 45-day public comment period. Consequently, the department is making significant revisions to the original proposed rule, and will be filing a Notice of Revised Rule Making with the Department of State for publication in the State Register. The Revised Rule Making will provide for an additional 30 day comment period. However, the department has determined that, in order to protect the general welfare, it is necessary to adopt this regulation on an emergency basis so that it will be in effect for the 2007–2008 trapping season, which begins on October 25, 2007.

These amendments are necessary to protect dogs that may come in contact with a trap while the dogs are being walked by their owners or are being used for hunting. At the same time, the regulation should not diminish the effectiveness of traps used for catching the intended furbearers, primarily fisher and raccoon.

Subject:

Setting of body gripping traps on land.

Purpose:

To prevent the capture of dogs in body gripping traps on land.

Text of emergency rule:

See Appendix in the back of this issue of the Register.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire December 11, 2007.

Text of emergency rule and any required statements and analyses may be obtained from:

Gordon R. Batcheller, Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, [phone], e-mail: [e-mail]

Additional matter required by statute:

A programmatic environmental impact statement is on file with the Department of Environmental Conservation.

Regulatory Impact Statement

1. Statutory Authority

Section 11-0303 Environmental Conservation Law (ECL) addresses the general purposes and policies of the Department of Environmental Conservation (Department) in managing fish and wildlife resources. Sections 11-1101 and 11-1103 of the ECL authorize the Department to regulate the taking, possession and disposition of beaver, fisher, otter, bobcat, coyote, fox, raccoon, opossum, weasel, skunk, muskrat, pine marten and mink (“furbearers”). This regulation addresses restrictions on the use of certain sizes of body gripping traps, traps which are used primarily to take fisher and raccoon.

2. Legislative Objectives

The legislative objective behind the statutory provisions listed above is to authorize the Department to establish the methods by which furbearers may be taken by trapping.

3. Needs and Benefits

These amendments to the Department's trapping regulations are intended to prevent the accidental capture, injury, or killing of dogs in body gripping traps primarily set to catch fisher or raccoons. The regulations will immediately enhance the general welfare by improving the selectivity of trapping when body gripping traps are used. Specifically, the potential for dogs to be captured, injured or killed in these traps will be reduced.

The Department first proposed a regulation to address this issue on May 30, 2007 (ENV 22-07-00010-P) and received a large number of comments during the 45-day public comment period. Consequently, the Department is making significant revisions to the original proposed rule, and will be filing a Notice of Revised Rulemaking with the Department of State for publication in the State Register. The Revised Rulemaking will provide for an additional 30 day comment period. However, the Department has determined that, in order to protect the general welfare, it is necessary to adopt this regulation on an emergency basis so that it will be in effect for the 2007–2008 trapping season, which begins on October 25, 2007.

The regulation would address the manner in which body gripping traps, measuring five and one-half inches or more in the open position, are set on land with the aid of baits, lures, or other attractants. Body-gripping traps are to be measured in accordance with paragraph 11-1101(6)(b) of the Environmental Conservation Law (ECL), which reads in part as follows:

The dimension of the body gripping trap shall be ascertained when the trap is set in the extreme cocked position and shall be the maximum distance between pairs of contacting body gripping surfaces except for rectangular devices which shall be the maximum perpendicular distance between pairs of contacting body gripping surfaces.

The Department has included diagrams in the regulation to clearly demonstrate how body-gripping traps are measured. For further clarity, the Department has also included diagrams in the regulations that illustrate leg-gripping traps (“foothold traps”) and how they are measured pursuant to ECL 11-1101(6)(a).

For traps of this size set on land, the regulations require that certain precautions be taken to avoid capturing a dog in body-gripping traps. These traps must be set in compliance with one of three options: (1) set four feet above the ground; or (2) set within one of three different types of enclosures which have restricted openings and other features designed to prevent a dog from entering and triggering the trap; or (3) set within an enclosure which is fastened to a tree or post in a vertical position, has only one opening which faces the ground, and is set so that the opening is no more than six inches from the ground.

The regulations also restrict the setting of body-gripping traps that are set without the use of baits, lures, or other attractants in so called “blind run sets.” In these cases, trappers will not be allowed to use body-gripping traps more than six inches in size, and when using smaller traps (six inches or less), they must be set close to the ground, below the typical level of a domestic dog.

The also prohibit the setting of body-gripping traps on public lands within one hundred feet of “trails,” which are defined as designated, marked, and maintained paths or ways designed for recreational, non-motorized traffic. The Department selected the one-hundred foot distance because there is an existing restriction in the Environmental Conservation Law that prohibits the setting of traps within one-hundred feet of homes, and a person walking a dog could reasonably be expected to be capable of controlling a dog with voice and visual commands within a distance of about one-hundred feet. The purpose of this restriction is to provide further protection to dogs being walked along trails. These restrictions do not effect traps set in water on public lands along trails, and do not effect the setting of leg-gripping traps because the purpose of this rulemaking is to reduce or eliminate the killing of dogs captured in body-gripping traps. However, while monitoring the implementation of the regulation, the Department will also closely monitor and evaluate any incidents involving the capture of dogs in leg-gripping traps within one hundred feet of trails on public lands.

The traps that will be impacted by this rule are mainly used to target raccoons and fisher. Raccoons and fisher are smaller than most dogs and are well adapted for crawling into small holes to find food or shelter or both. These species are natural cavity dwellers. Dogs, on the other hand, are generally not well adapted for climbing into small holes.

The regulations require that body-gripping traps used in conjunction with baits, lures, or other attractants be set within a container designed to exclude dogs. The regulations require that traps be set at least four inches from the opening of an enclosure with a six inch or smaller opening; and that traps be set at least eighteen inches from the opening of an enclosure with ten inch or smaller openings. Traps placed in enclosures made of natural materials are allowed if they are set at least eight inches from an entrance hole, and the entrance hole does not exceed six inches measured vertically. A trap that is set in an enclosure affixed to a tree or post must have its only opening positioned no more than 6 inches from the ground.

Collectively, these choices of design options provide flexibility for trappers while greatly reducing the chance that a dog may be captured, injured, or killed in body-gripping traps. Department staff believe that such requirements will make these traps very selective to catching raccoons and fisher, and relatively inaccessible to dogs. Similar techniques have been used in other states with effectiveness.

Traps adapted pursuant to the requirements should remain effective for capturing raccoons and fisher because these species readily enter small holes to seek shelter or food or both. For this reason, the modified trap sets are not expected to significantly reduce the ability of trappers to catch these species. However, the rule will increase the selectivity of trapping and reduce or eliminate the capture of most dogs. A very small dog, however, may still be vulnerable to capture, injury, or death.

If a trapper opts to comply with the regulation by placing the trap at least four feet above the ground, dogs will be at very low risk of capture because the traps will be out of reach of most dogs. Raccoons and fisher, however, are well adapted to climbing, and traps will remain effective in catching these species if they are placed four feet or more above ground. The Environmental Conservation law prohibits the suspension of animals caught in traps, and trappers will need to use techniques that will prevent the suspension in the air of any animal caught above the ground in a body-gripping trap.

The regulation is needed to protect dogs that may come in contact with a trap while the dogs are being walked by their owners or are being used for hunting. At the same time, the regulation should not negatively affect the effectiveness of traps used for catching the intended furbearers, primarily fisher and raccoon.

4. Costs

Trappers will be required to purchase or construct an enclosure made of wood, metal, plastic, or wire that will be used in the setting of certain body gripping traps. Alternatively, they may fashion an enclosure from natural materials, such as rocks or logs. Additionally, they may choose to set their traps at least four feet above the ground. For trappers who decide to use an enclosure, the Department estimates that trappers will need to spend approximately five (5) dollars in materials to comply with the regulation. In some cases, the expense will be lower because suitable buckets, wire, and lumber may be used to construct the container and are available at very low expense or salvageable as scrap.

5. Local Government Mandates

This rule making does not impose any program, service, duty or responsibility upon any county, city, town, village, school district or fire district.

6. Paperwork

The rules do not impose additional reporting requirements upon the regulated public (trappers).

7. Duplication

There are no other local, state or federal regulations concerning the taking of fisher and raccoons.

8. Alternatives

An alternative to making the changes is to leave the trapping regulations unchanged. However, this would mean that dogs would continue to be vulnerable to capture, injury, or death in traps set for the capture of furbearers.

9. Federal Standards

There are no federal government standards for the taking of fisher and raccoons.

10. Compliance Schedule

Trappers will be required to comply with the new rule as soon as it takes effect.

Regulatory Flexibility Analysis

The purpose of this rule making is to amend the Department s trapping regulations in an effort to prevent the capture, injury, or killing of dogs by body-gripping traps intended to capture wildlife. It applies to traps set on land with an opening that measures five and one half inches or larger. Trappers using these traps will be required to either use dog resistant containers with their traps or set their traps at least four feet above ground. Trappers will not be allowed to set body-gripping traps on public lands within one hundred feet of designated and marked trails. The regulations apply statewide.

The regulations do not apply directly to local governments or small businesses. Therefore, the Department has determined that this rule making will not impose an adverse economic impact on small businesses or local governments since it will not affect these entities.

Fisher trappers must report their take to the Department to lawfully possess a trapped fisher. The rule making does not affect this requirement. All other reporting or recordkeeping requirements associated with trapping are administered by the Department. Therefore, the Department has determined that this rule making will not impose any reporting, recordkeeping, or other compliance requirements on small businesses or local governments.

Based on the above, the Department has concluded that a regulatory flexibility analysis is not required.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The regulation will apply statewide, and would affect trapping in all rural areas of New York.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The purpose of this rule making is to amend the trapping regulations for body gripping traps. It will apply to traps set on land with an opening that measures five and one half inches or larger. Trappers using these traps will be required to either use dog resistant containers with their traps or set their traps at least four feet above ground. They will also be prohibited from setting body-gripping traps on public lands within one hundred feet of designated and marked trails.

No professional services are needed for trappers to comply with the new regulations. Fisher trappers are currently required to report the harvest of fisher to the Department. The rule making does not affect this requirement. All other reporting or recordkeeping requirements associated with fisher trapping are administered by the Department. There are no reporting requirements for raccoon trappers.

3. Costs:

The cost of equipping a single trap with a dog resistant container is estimated to be $5 or less in material expenditures. Trappers will be required to purchase or construct suitable boxes, buckets, or wire cages for setting body gripping traps. Alternatively, they may choose to set their traps at least five feet above the ground. For trappers who decide to enclose their traps in a container, the Department estimates that the average trapper will need to spend a total of $85 ($5 per trap × an average of 17 traps of the type affected by the regulation) in materials to comply with the regulation. The Department estimates that trappers will spend an additional $15 on annual maintenance costs. In some cases, the expense will be nearly zero because suitable buckets, wire, and lumber are available at very low expense or salvageable as scrap.

4. Minimizing adverse impact:

The regulations will primarily affect the trapping of fisher and raccoons. They are intended to prevent the capture, injury, or killing of dogs in body-gripping traps. Under the terms of the regulations, trappers may comply with the new requirements by setting their traps at least four feet above ground level. Alternatively, they may choose to set their traps within a dog-resistant container, as specified in the regulations.

The regulations should protect dogs without reducing trapper effectiveness in trapping raccoon and fisher. These requirements are not expected to significantly change the number of trappers or the frequency of trapping in rural areas.

5. Rural area participation:

Prior to proposing this regulation, the Department conducted seminars in all areas of the State to teach trappers about techniques to avoid catching dogs, and incorporated these techniques in the Department's mandatory trapper education curricula. The Department also published information on methods to avoid catching dogs. This publication was sent to all licensed trappers in the State of New York on two separate occasions. The Department has adopted this regulation because it is essential that all trappers use techniques to avoid the capture and killing of dogs in body-gripping traps.

Job Impact Statement

The purpose of this rule making is to amend the Department's trapping regulations in an effort to prevent the capture, injury, or killing of dogs by body-gripping traps intended to capture wildlife. It applies statewide to traps set on land which have an opening that measures five and one-half inches or larger.

Due to the size of the trap involved, this regulation will primarily affect the trapping of fisher and raccoons. Under the terms of the regulations, trappers may comply with the new requirements by setting their traps at least four feet above ground level. Alternatively, they may choose to set their traps within a dog resistant container, as specified in the regulations. The proposal also prohibits the setting of body-gripping traps on lands within one hundred feet of designated and marked trails.

Trappers derive only a small portion of their annual income from the sale of animals taken by trapping. Moreover, the rule making is not expected to significantly change the number of participants (trappers), the frequency of participation in the regulated activities, or trapping success by each trapper. The regulations do not prohibit trapping activity, so long as each trap complies with the measures designed to protect dogs. Effective methods for capturing fisher and raccoons will remain available to trappers under the regulations, while the likelihood of injuring or killing a dog will be reduced, if not eliminated. For these reasons, the Department anticipates that this rule making will have no negative impacts on jobs and employment opportunities. Therefore, the Department has concluded that a job impact statement is not required.