PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 1.20 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 11-0303 and 11-0913
Subject:
Deer management permits.
Purpose:
To amend procedures for the issuance and use of deer management permits.
Text of final rule:
Amend paragraph 1.20(b)(2) of 6 NYCRR as follows:
(2) Initial application period. The deadline for the initial application period is October [15th] 1st. In order to receive consideration, applications for the initial application period made by phone, internet or at license issuing agents shall be submitted on or before October [15th] 1st for that license year. Applications submitted by mail shall be postmarked on or before October [15th] 1st for that license year.
Amend paragraph 1.20(b)(4) of 6 NYCRR as follows:
(4) Application fees. All applications must include the fee required in accordance with section 11-0913 of the Environmental Conservation Law. This fee will be waived for holders of junior archery, [sportsman, resident and nonresident super-sportsman, and conservation legacy] junior hunting, and lifetime sportsman (if bought prior to October 1, 2009) license types. [Fees and/or m]Monies received in excess of the application fee will not be refunded.
Add new subdivision 1.20(l) of 6 NYCRR as follows:
(l) "Sale of DMPs." No person shall buy, sell or offer to sell a DMP.
Final rule as compared with last published rule:
Nonsubstantial changes were made in section 1.20(1).
Text of rule and any required statements and analyses may be obtained from:
Gordon R. Batcheller, N.Y.S. Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4754, (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
1. Statutory authority:
Section 11-0303 of the Environmental Conservation Law (ECL) directs the Department of Environmental Conservation (department) to develop and carry out programs that will maintain desirable species in ecological balance, and to observe sound management practices. This directive is to be met with regard to ecological factors, the compatibility of production and harvest of wildlife with other land uses, the importance of wildlife for recreational purposes, public safety, and protection of private premises. Section 11-0913 provides for the issuance of deer management permits, including the fee for the application and processing of those permits.
2. Legislative objectives:
Deer management permits are the basic tool for managing New York's deer herd. The annual harvest of antlerless deer (primarily female deer) is essential to maintain ecological balance between deer and their habitats. The legislative objective of section 11-0913 ("Deer management permits") is to provide the tools necessary to manage the deer herd.
3. Needs and benefits:
The final rule amends three aspects of the deer management permit (DMP) program: (1) Establishing October 1st as the deadline for the "initial application period," (2) Prohibiting the sale of DMPs, and (3) Establishing hunting license types for which the $10 DMP application fee is waived.
October 1 Application Deadline
The current regulation establishes October 15th as the application deadline. The earlier application period of October 1st is needed to provide enough time to process applications, to identify wildlife management units where additional DMPs will be made available, and to mail those additional applications in time for the beginning of the Southern Zone bowhunting season.
Prohibiting the Sale of DMPs
The department's Division of Law Enforcement has identified the sale of Deer Management Permits (DMPs) as an emerging law enforcement concern. During last year's hunting season, several regions uncovered schemes to sell DMPs via several commercial internet outlets. Such sale is not currently prohibited but if this situation is allowed to proliferate, the sale of DMPs will compromise deer management by complicating the calculation of DMP quotas that are based on hunter participation and success.
Since the sale of deer management assistance permits (DMAPs) is already prohibited pursuant to 6 NYCRR section 1.30, the prohibition on selling DMPs will establish a clear and uniform policy consistent with the premise that hunting opportunities should be provided with both equity and fairness and not to the "highest bidder." This practice should be ended by regulation to assure that the deer management system is not compromised.
The department has made a minor change in the text of the final rule to clarify that deer management permits may not be bought, sold, or offered for sale.
Waiving the $10 DMP Application Fee
Legislation signed into law in 2009 to increase license fees for hunting, trapping, and angling includes an amendment to subdivision 7 of the ECL section 11-0913 addressing the DMP application fee ($10).
The final rule waives the DMP application fee for three categories of licenses: (1) Junior archery, (2) Junior hunting, and (3) Lifetime sportsman (if bought prior to October 1, 2009). All other categories of licensees are required to pay the $10 DMP application fee.
Under the old law, the department's regulations provided for a DMP fee waiver for all authorized license types, including the conservation legacy and super-sportsman" license types. Under the new law, the department will use the waiver authority for three license types (junior and lifetime), but not for the "super-sportsman."
The final rule ensures that the program is delivered with fairness and equity. In the case of the new law, two major categories of license types have been removed from the waiver authority: sportsman and conservation legacy. The department does not have the authority to waive the DMP fees for these license buyers. While the department does have the authority to waive the DMP application fee for the super-sportsmen license, the use of this authority will be widely viewed as unfair. Moreover, if the department were to waive the DMP fee for resident super-sportsman, very few people will continue to buy the higher priced conservation legacy license, and consequently we will sell fewer habitat/access stamps and subscriptions to the Conservationist (both are included in this license type). Finally, by requiring a DMP fee for resident super-sportsman, the department will collect an additional $1 million (or more) in revenue.
4. Costs:
None, beyond normal administrative costs.
5. Local government mandates:
There are no local governmental mandates associated with this proposed regulation.
6. Paperwork:
No additional paperwork is associated with this proposed regulation.
7. Duplication:
There are no other regulations similar to this final rule.
8. Alternatives:
Maintaining the October 15th application deadline for DMPs will unnecessarily complicate DMP processing and issuance. October 15 is very close to the opening of the Southern Zone bowhunting season, and the Department strives to complete DMP issuance prior to that date. The October 1st deadline application is needed to ensure that hunters receive their DMPs in time for hunting.
In the absence of a prohibition on the sale of DMPs, this practice will undoubtedly proliferate and subject the DMP application and issuance process to the vagaries of market economics. Moreover, it will complicate law enforcement. For this reason, the department has rejected the no action alternative.
Waiving the DMP fee for resident super-sportsman will create a sense of injustice among holders of other license types. It will also create confusion among license buyers. For this reason, the department has rejected the no action alternative.
9. Federal standards:
There are no federal standards associated with this proposal.
10. Compliance schedule:
Hunters will be able to comply with the new regulations as soon as they are adopted.
Revised Regulatory Flexibility Analysis
The proposed regulation has no effect on small businesses or local governments. It simply amends the procedures for issuing deer management permits, and stipulates that deer management permits may not be sold. Therefore, the department has determined that a Regulatory Flexibility Analysis for Small Businesses and Local Governments is not needed.
Revised Rural Area Flexibility Analysis
The proposed regulation has no effect on rural areas. It simply amends the procedures for issuing deer management permits, and stipulates that deer management permits may not be sold. Therefore, the department has determined that a Rural Area Flexibility Analysis is not needed.
Revised Job Impact Statement
The proposed regulation does not affect jobs. It simply amends the procedures for issuing deer management permits, and stipulates that deer management permits may not be sold. Therefore, the department has determined that a Job Impact Statement is not needed.
Assessment of Public Comment
The Department of Environmental Conservation (department) received comments on the proposed changes. A summary of the comments received and the department's response follows:
Comment
The $10 fee for deer management permits should be waived, especially because so many deer management permits are being issued.
Response
The department's proposal is needed to ensure that the program is delivered with fairness and equity. While the department does have the authority to waive the deer management permit application fee for the super-sportsmen license, the use of this authority will be widely viewed as unfair because the conservation legacy fee cannot be waived. Moreover, if the department were to waive the fee for resident super-sportsman, very few people will continue to buy the conservation legacy license, and consequently fewer habitat/access stamps and subscriptions to the Conservationist (both are included in this license type) would be sold. Finally, by requiring a fee for resident super-sportsman, the department will collect an additional $1 million (or more) in revenue.
Comment
The deer herd is not being managed properly and we should not have to spend more money.
Response
The department carefully manages and monitors the deer population on a wildlife management basis. Population objectives are based on recommendations from citizen task forces that are charged to establish objectives based on biological, social, and economic needs. The department's deer management program is responsive to those needs, and frequently adjusted to ensure that population objectives are achieved.
Comment
The landowner preference should be reinstated (landowners should not have to pay the $10 fee).
Response
Landowner preference (in deer management permit selection) is based on ownership of at least 50 acres of land. The Environmental Conservation Law does not accommodate a fee waiver for landowners applying for a deer management permit.
Comment
The $10 fee is unreasonable and hunters are unable to pay this new requirement.
Response
All fees for sporting licenses and deer management permit applications are established by the New York State Legislature. The department does not have the authority to increase or decrease these fees.
Comment
Imposing fees for deer management permits will reduce the deer harvest, causing the deer population to increase.
Response
The department will carefully monitor license sales and deer harvest. If deer harvest is not sufficient to meet deer population objectives, the department will adjust the deer management permit quotas in subsequent years.
Comment
The new fees will reduce the number of hunters and increase the number of deer management permits issued to farmers.
Response
As previously indicated, the department will carefully monitor the number of deer hunters and the annual deer harvest. When deer population objectives are not met, the department will adjust the number of permits issued in a given wildlife management unit.
Comment
It is unfair for residents to pay the fee for deer management permits and for non-residents to be exempt from paying the fee.
Response
Non-residents are required to pay the same amount for a deer management permit as residents. All applicants are now required to pay $10 to apply for a permit. The sole exceptions are junior hunters and hunters who purchased a lifetime sportsman license prior to October 1, 2009.
