ENV-50-13-00004-P Taking of Free-Ranging Eurasian Boars and Interference with Department Authorized Eradication Efforts

12/11/13 N.Y. St. Reg. ENV-50-13-00004-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 50

December 11, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-50-13-00004-P

Taking of Free-Ranging Eurasian Boars and Interference with Department Authorized Eradication Efforts

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

Proposed Action:

Addition of section 180.12 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0514 and 11-0303

Subject:

Taking of Free-ranging Eurasian Boars and interference with Department authorized eradication efforts.

Purpose:

Prohibit the taking of Eurasian boars by hunting or trapping in order to support eradication efforts of USDA and DEC.

Text of proposed rule:

6 NYCRR Part 180 (“Miscellaneous Regulations”) is amended to add a new Section 180.12 entitled “Eurasian boar” to read as follows:

Section 180.12 Eurasian boar

(a) Prohibitions.

(1) No person shall hunt, trap, take or engage in any activity, including the use of dogs, that is likely to result in the taking of any free-ranging Eurasian boar, as defined in Environmental Conservation Law section 11-0514. “Free-ranging” shall mean any Eurasian boar that is not lawfully possessed within a completely enclosed or fenced facility from which the animal cannot escape to the wild.

(2) No person shall disturb, move, destroy, tamper with, obstruct, damage, open or interfere with any lawfully set Eurasian boar trap, net or capture device. No person shall release, remove or transport any live Eurasian boar caught in any trap, net or capture device.

(3) Exceptions. This section shall not apply to any state or federal agency, to any member of a law enforcement agency acting in accordance with their official duties, or to any other person permitted to take Eurasian boar pursuant to Environmental Conservation Law section 11-0521 or section 11-0523. Any person who takes a free-ranging Eurasian boar pursuant to any of the above exceptions shall promptly notify the Department and follow all instructions given by the Department with respect to handling and disposition of the carcass.

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

Kelly Stang, NYS DEC, 625 Broadway, Albany, NY 12233-4754, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. Statutory authority:

Section 11-0303 (entitled “Management of fish and wildlife resources; general purposes and policies governing manner of exercise of powers”) grants the Department broad authority to develop and carry out programs and procedures which will in its judgment, (a) promote natural propagation and maintenance of desirable species in ecological balance, and (b) lead to observance of sound management practices for such propagation and maintenance on lands and waters of the state, whether owned by the state or held in private ownership.

Section 11-0514 (entitled “Eurasian Boars prohibited”) of the Environmental Conservation Law (ECL) provides the Department with authority to adopt any rules and regulations necessary to implement and administer this section of law, which relates to importation, possession, sale, or release of Eurasian Boar in New York State.

2. Legislative objectives:

The legislative objectives of Section 11-0303 are to empower the Department to promote the general welfare of desirable species in ecological balance, and promote management practices to accomplish that end. The ultimate objectives include, but are not limited to, the maintenance of ecological balance, compatibility of fish and wildlife with necessary or desirable land uses, and protection of public safety and private property.

The legislative objectives of Section 11-0514 are to prohibit the importation, possession, sale, or release of Eurasian Boar in New York State. The primary purpose of these prohibitions is to prevent the establishment of free-ranging Eurasian boar populations in New York State, due to concerns about the adverse impacts these animals can have on native plants and wildlife, livestock, agriculture, and public health and safety.

3. Needs and benefits:

This rule making is necessary to ensure that Eurasian boars do not become established in the wild in New York, as a complementary measure to the recently enacted legislation. ECL 11-0514 prohibited the importation, propagation and release of Eurasian boars in New York, but it allowed for continued possession of boars in captivity until September 1, 2015. During this interim period, the potential for illegal releases or escapes from captive facilities is high, so we need to ensure that DEC and USDA are able to conduct effective trapping operations without interference as soon as any boars are reported in the wild. Even after possession of Eurasian boars is completely prohibited, we will need to ensure that any continued eradication efforts can occur without interference.

ECL-0514 also did not address the status free-ranging boars that already exist in the wild or which may result from illegal releases or escapes from captive facilities. Under ECL 11-0103, those boars are considered “unprotected wildlife”, which can be taken at any time and in any manner. However, as discussed below, allowing this unrestricted take of boars can be in direct conflict with eradication and prevention strategies. Therefore, we need to prohibit the taking of free-ranging boars using the “general powers” authority provided by ECL-0303(2).

The transport and release of Eurasian boars to establish hunting populations, the escape of Eurasian boars from enclosed shooting facilities, and domestic swine that have escaped and become wild have resulted in breeding populations of Eurasian boars in at least 36 states, including New York. Eurasian boars have been confirmed breeding in at least 6 counties in New York and they have been reported in many other New York counties across the state.

Without immediate action, Eurasian boar populations will become permanently established across New York as a result of natural range expansion, illegal movement by hunters, and escapes from enclosed shooting facilities and swine breeding facilities. Eurasian boars cause extensive harm to native wildlife and their habitats, agricultural crops, and other private and public property. They also pose a disease threat to domestic livestock, pets and humans. The potential establishment and rapid growth of Eurasian boar populations are a major concern to natural resource managers, farmers, livestock producers, and animal health officials in New York and other states across the country.

Eradication of Eurasian boars is the ultimate goal of the Department. DEC and USDA have initiated eradication efforts in many locations where Eurasian boars have been confirmed, and those efforts are expected to continue and expand over the next several years. However, eradication is expensive, time consuming and requires a great deal of manpower. Therefore, eradication efforts must be reinforced with effective preventive measures to eliminate both the supply and demand for Eurasian boars in New York.

Because Eurasian boars are considered “unprotected wildlife” under ECL 11-0103, any person with a small game hunting license may take Eurasian boars at any time and in any number. Although this can result in the removal of some individual boars, it also contributes to the demand for continued importation and release of Eurasian boars into areas of New York where they do not already occur. Some hunters want to be able to hunt “wild boar” but do not have permission to hunt on land in areas where Eurasian boars reside, or they do not want to travel far and want to expand boar hunting opportunities to their own or nearby land. These hunters may obtain Eurasian boars, often from outside the state, and transport them to New York for release, in hopes of establishing a local population. Such movement and release of Eurasian boars makes eradication impossible to achieve. In Missouri and Tennessee, it is believed that the biggest contribution to feral hog population expansion was the illegal release of feral hogs for the purpose of sport hunting. We need to counter the perception that Eurasian boars represent a potential new “game” species for New York hunters, as the destruction these animals can cause far outweighs any recreational benefits they may provide.

As long as Eurasian boars may be pursued by hunters, there is also a potential conflict with our eradication efforts. Eurasian boars often join together to form a “sounder”, the name for a group of pigs sometimes numbering 20 or more individuals. Trapping Eurasian boars in corral traps is the most effective way to capture a large number of boars at one time. Simply shooting individual boars as opportunities arise is ineffective as an eradication method. In some cases, hunters may attempt to take boars in locations where baited traps have been established by DEC or USDA, and this disturbance can undermine costly and labor-intensive capture efforts. Shooting may kill one or two boars but the rest of the sounder scatters and rarely comes back together as a group, thereby hampering eradication efforts. Some landowners have also indicated that Eurasian boar hunting could provide them with income from hunters willing to pay to hunt their lands, resulting in less cooperation with eradication efforts in that area. In addition to prohibiting take of Eurasian boars by hunters, the proposed regulation would prohibit anyone from interfering with Eurasian boar eradication activities.

The proposed regulations provide appropriate exceptions for state and federal wildlife agencies, law enforcement agencies, and persons permitted to take Eurasian boar pursuant to ECL 11-0521 to alleviate nuisance, property damage, or threats to public health or welfare.

4. Costs:

Adoption of these regulations will impose no additional costs to the Department beyond normal administrative costs, but failure to eradicate and prevent Eurasian boars in New York would result in substantial costs in natural resource damages, as well as future response and control efforts. Adoption of these regulations also will not result in any increased expenditures by State or local governments or the general public.

5. Local government mandates:

These amendments do not impose any program, service, duty or responsibility upon any county, city, town, village, school district or fire district.

6. Paperwork:

The proposed rule does not require or impose any new record keeping or additional paperwork from any regulated party.

7. Duplication:

The proposed regulation does not duplicate any state or federal action or requirement.

8. Alternatives:

We considered the following alternatives to the proposed rulemaking:

(a) Adopt no regulations. This would allow licensed hunters and others to take Eurasian boars (which are currently considered “unprotected wildlife” according to the ECL) at any time and in any number. This would maintain an unintended incentive for people to illegally import and release Eurasian boars to establish “huntable” populations in the wild. It would also undermine efforts by the Department and USDA to eradicate Eurasian boars, as people who wish to see the population grow could attempt to interfere with removal efforts with impunity. Without the proposed regulation, Eurasian boar populations could grow rapidly as a result of these activities, resulting in significant harm to natural resources, agricultural interests, and public and private properties throughout New York State.

(b) Propose more comprehensive regulations. Some consideration was given to require landowner reporting of Eurasian boar sightings, to prohibit possession of any Eurasian boar carcass (or parts thereof), or to require landowners to allow Department or USDA staff access for eradication activities, but such measures were deemed too intrusive on private citizens. DEC and USDA both favor a cooperative, voluntary and, if necessary, an incentive-based approach to working with property owners and other stakeholders to eradicate and prevent establishment of free-ranging Eurasian boars in New York.

9. Federal standards:

There are no federal environmental standards or criteria relevant to the subject matter of this rule making.

10. Compliance schedule:

All persons must comply with this rule making immediately upon adoption.

Regulatory Flexibility Analysis

The purpose of this rule making is to prohibit hunting, trapping or taking of free-ranging Eurasian boars, and to prohibit disturbance or interference with Eurasian boar capture activities being conducted by the Department or its cooperators. This rule will not impose any reporting, record-keeping, or other compliance requirements on small businesses or local governments. Therefore, a Regulatory Flexibility Analysis is not required.

Rural Area Flexibility Analysis

The purpose of this rule making is to prohibit hunting, trapping or taking of free-ranging Eurasian boars, and to prohibit disturbance or interference with Eurasian boar capture activities being conducted by the Department or its cooperators. This rule making does not require any new or additional reporting or record-keeping by entities in rural areas, and no professional services will be needed for people living in rural areas to comply with the proposed rule. In a few isolated cases, private landowners who may have Eurasian boars on their property will not be able to obtain income from hunters willing to pay to hunt their lands, but the locations of such opportunities are unpredictable and not known to exist currently. Furthermore, the potential damage that free-ranging Eurasian boars can cause to agriculture and other rural area interests far outweigh any potential economic benefits associated with hunting of these animals. Therefore, the Department has concluded that this rule making does not require a Rural Area Flexibility Analysis.

Job Impact Statement

The purpose of this rule making is to prohibit hunting, trapping or taking of free-ranging Eurasian boars, and to prohibit disturbance or interference with Eurasian boar capture activities being conducted by the Department or its cooperators. Because the number of free-ranging Eurasian boars in the state is still relatively small, the Department is not aware of any measureable amount of hunting activity, or persons who provide Eurasian boar hunting services as a means of employment. Therefore, the department has determined that this rule making will not have a substantial adverse impact on jobs and employment opportunities, and a job impact statement is not required.