8 CCR 1201-12, pt. 12.00 - STATEMENTS OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE
The statements of basis and purpose for some rule changes are no longer in the Department files and are presumably in the state archives.
STATEMENT OF BASIS, PURPOSE AND STATUTORY AUTHORITY
These amendments are adopted pursuant to the Predatory Animal Control provisions, §§ 35-40-100.2 through 115, C.R.S. (1995 and 1996 Supp.)
In 1996, the people of the state of Colorado enacted Section 13 of Article XVIII to the Colorado Constitution, commonly known as Amendment 14, which defines prohibited methods of taking wildlife. The legislature, through SB 97-052, enacted legislation to implement Section 13 of Article XVIII of the State Constitution.
The purposes of these amendments are to incorporate Colorado Constitution Article XVIII, Section 13 and SB 97-052 into the restrictions pertaining to state employees and owners of agricultural products or resources and their families, employees, agents, and identified designees for the control of depredating animals, pursuant to section 35-40-101, C.R.S. (1995 And 1996 supp.); correct errata; and renumber provisions as appropriate.
FACTUAL ISSUES ENCOUNTERED WHEN DEVELOPING THESE RULES
Pursuant to SB 97-052, Section 33-6-207(3), the Colorado Commissioner of Agriculture, Department of Agriculture, shall have the authority to adopt and enforce reasonable rules governing trapping, snaring, and poisoning, which rules may include reasonable restrictions on the devices and poisons to be used and the manner of their use.
STATEMENT OF BASIS AND PURPOSE
The amendments to these rules are proposed to the Commissioner of the Colorado Department of Agriculture ("Commissioner") for his adoption pursuant to his authority as set forth in the Predatory Animals Act, § 35-40-101(2)(a), C.R.S.
The purpose of the amendments to these rules is to effect the legislative directive to adopt rules for the control of depredating animals.
Notice has been given to local government agencies and organizations that may be affected by this rulemaking.
SPECIFIC PURPOSE OF THIS RULEMAKING
Many of the changes to this rule are aesthetic, grammatical, or syntactical. For instance, the Commissioner has provided a clarified title to these rules to remove the non-necessary word "amendment" and to conform the name of the rules to the organic, enabling statute. Additionally, the definitions have been re-numbered to account for the lack of an "A" in the previous version.
Within the definitions, this rule change modifies the definitions of "animal" and "at-risk" to comport with their statutory definitions and to remove references to SB 96-197. Because the Colorado Division of Wildlife has changed its name to the Colorado Division of Parks and Wildlife, the definitions section has been amended to provide a new definition for "CPW" and thus to remove "DOW." Similarly, the term "ADC" for "Animal Damage Control" references an out-dated program that has been replaced by the "Wildlife Services" of the United States Department of Agriculture.
Changes grammatically to the language included an exchange of the relative pronoun "that" for "which" where the pronoun introduced restricted relative clauses. The word "section" was removed in these rules and replaced consistently with its symbol. In other locations where sentences would be more effective with fewer words or more straight-forward language, such changes were made.
The previous rules, in section 7, paragraphs F, G (the second G), and I, text that had been stricken through during the drafting process had subsequently been adopted into the final rule with the strikes-through in the text. This rule change removes all language that had been adopted into the rule with strikes through the language.
As in the definitions, all references to "Division of Wildlife" or "DOW" have been removed and replaced with "Division of Colorado Parks and Wildlife" or "CPW."
The Commissioner received information that the term "Conibear" is a trade-marked term for a particular brand of body-grip trap. To avoid infringing on a trade mark, these rules remove all references to the word "Conibear" and replace that word with language to describe the particular type of body-grip trap.
This rule removes the paragraph regarding the records of the Department, as the Colorado Open Records Act, §§ 24-72-202 through 24-72-206, C.R.S., articulate what is and what is not a record open to public inspection.
Statutory Authority
The amendments to these rules are proposed to the Commissioner of the Colorado Department of Agriculture ("Commissioner") for his adoption pursuant to his authority as set forth in the Predatory Animals Act, § 35-40-101(2)(a), C.R.S.
Purpose
The purpose of this rule-making is to make the Rules easier to read and understand while updating the Rules to reflect best management practices and align with changes in Colorado Parks and Wildlife's ("CPW") regulations. Other changes include clarifying sentences; updating language; and renumbering to make this Rule consistent with other Department Rules.
Factual and Policy Issues in February of 2017, Colorado Parks and Wildlife (CPW) assembled a trapping workgroup consisting of individuals from different branches within the agency as well as from the Colorado Department of Agriculture (CDA), United States Department of Agriculture (USDA), and the Colorado Trappers and Predator Hunters Association (CTPHA). This group was tasked with updating CPW's trapping regulations to incorporate new industry best management practices (BMPs), increase animal welfare, and make CPW regulations consistent with those of CDA.
In March of 2018, CDA used the same trapping workgroup to review and update CDA's Rules Pertaining to the Control of Depredating Animals and to bring them into alignment with CPW's recently adopted trapping regulations.
Overall, CPW and CDA relied on the BMPs developed by the Association of Fish and Wildlife Agencies (AFWA) to make these recommended changes. These BMPs were developed based on sound science and research, evaluating traps and trapping methods to increase animal welfare, as well as improve efficiency, species selectivity and safety.
Specific changes
Definitions for "drag"; "lethal body grip device"; "live trap (cage or box)"; and "enclosed foothold trap" were added to provide more clarity and incorporate modern terminology on what these traps are. The terms "leghold"; "snare"; "instant kill body-gripping designed trap"; and "nonlethal snare" were also replaced with the terms "foothold"; cable device trap"; "body grip device"; and "nonlethal cable device trap" respectively, to align with the language within AFWA's BMPs.
Part 2, B was removed, requiring that identified designees receive prior authorization from the Commissioner before being allowed to take bears or mountain lions. This was impractical to require designees to receive prior authorization in addition to the other requirements including possession restrictions and notification of CPW after any take of bears and lions.
"Identified designees" has been incorporated into the revised Part 3 and new language was added to mirror CPW's updated trapping language, including standards, methods, and BMPs for foothold traps, non-lethal cable devices, lethal cable devices, and body-grip devices. The outdated, redundant, and duplicative language in the former Part 3 was removed.
Part 3.7 is changed to correlate new BMPs, types of traps, and areas of restricted trapping. These changes provide greater clarity as to types of traps, when those traps may be used, and exceptions for prohibited areas.
Part 3.9.1 regarding the use of predacides now references the Pesticide Applicators' Act, § 35-10-101, et seq., the controlling law with regard to pesticide use in Colorado.
Part 3.11.1 now includes that the Commissioner may take into consideration the training of the person who is going to take from aircraft. Knowing what the intended person's training is becomes important to prevent unintentional take and to protect the public.
Rule 3.12 is now broken into two Parts to distinguish the different requirements for use of artificial light on private land versus the use of artificial light on public land.
Part 3.13 was added to clarify that APHIS Wildlife Services is also authorized to take depredating animals pursuant to Part 3. This brings Part 3 into conformity with Part 7.3, which permits APHIS Wildlife Services to take black bears and mountain lions.
The old Part 7.00 H is removed because of its redundancy to 7.00 I, which now becomes the new Part 7.6.
In Part 8 Wildlife Services was removed as an authorized agency that is allowed to move, remove, damage or tamper with any trap that is being used to control depredating animals pursuant to these rules. Wildlife Services does not possess the statutory authority to tamper with traps that are not owned by them.
Statutory Authority
The amendments to these rules are proposed to the Commissioner of the Colorado Department of Agriculture ("Commissioner") for adoption pursuant to authority as set forth in the Predatory Animals Act, § 35-40-101(2)(a) and (c), C.R.S.
Purpose
The purpose of this rule-making is to clarify that dogs may be used as a non-lethal depredation deterrent and that artificial light may be used with all depredating animals, including bears and mountain lions. Other changes include adding additional details to the definition of "Group of animals" and specifying which US Fish and Wildlife Service office should be contacted if a federally protected species is inadvertently captured in a trap specifically designed not to kill.
Factual and Policy Issues
In February of 2017, Colorado Parks and Wildlife (CPW) assembled a trapping workgroup consisting of individuals from different branches within the agency as well as from the Colorado Department of Agriculture (CDA), United States Department of Agriculture (USDA), and the Colorado Trappers and Predator Hunters Association (CTPHA). This group was tasked with updating CPW's trapping regulations to incorporate new industry best management practices (BMPs), increase animal welfare, and make CPW regulations consistent with those of CDA.
In March of 2018, CDA used the same trapping workgroup to review and update CDA's Rules Pertaining to the Control of Depredating Animals and to bring them into alignment with CPW's recently adopted trapping regulations.
In late 2019 CPW changed the name of this working group to the Furharvester Working Group and added additional tasks. CDA used members of this Furharvester Group to review these proposed changes.
Specific changes
The proposed rules re-order the definitions of "enclosed foothold trap" and "employee" to alphabetize them; add "across a county, region or the state" to clarify the definition of "group of animals"; and add "nonlethal cable device traps" into the definition of "traps specifically designed not to kill" because nonlethal cable device traps are by design traps specifically designed not to kill.
A change to Part 3.7.1 removes a grammatically incorrect "a."
The changes to Part 4.2.2 re-order the words "federal" and "state" for consistency with the rest of the rule; update the title of the US Fish and Wildlife Service employee to be contacted if a federally protected species is captured; and further specify that inquiries regarding federal law related to the capture of federally protected species be made specifically with the Lakewood, Colorado, office.
The changes to Part 7 add the use of guard dogs, decoy dogs, coursing dogs and trailing dogs as a non-lethal means of hazing potential predatory bears and mountain lions away from livestock. As well, the changes add the use of artificial light as a tool for livestock owners to protect their livestock from depredation by bears and lions.
Notes
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