Presenter: John Herron

Commission Agenda Item No. 9
Action
Raptor Proclamation
May 2004

I. Executive Summary: This item presents proposed changes to the Raptor Proclamation as a result of recommendations from the Falconry Advisory Board. The changes include:

II. Discussion: Chapter 49 of the Parks and Wildlife Code governs the take, capture, possession, propagation, transportation, export, import, and sale of raptors in this state, and authorizes the Commission to regulate reporting eligibility, identification, and reporting requirements. The last regulatory changes to the Raptor Proclamation were made in 1998, as a result of legislation enacted by the 75th Texas Legislature. The proposed regulations located at Exhibit A were developed as a result of consultations with and recommendations from the department’s Falconry Advisory Board. At the April 2004 meeting of the Regulations Committee, staff was authorized to publish the proposed regulations located at Exhibit A for public comment. The proposed regulations appeared in the April 23, 2004, issue of the Texas Register (29 TexReg 3940). Staff will provide a summary of public comment at the time of the hearing.

III. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts proposed amendments to 31 TAC §§65.263-65.265 and 65.270, concerning the Statewide Fur-Bearing Animal Proclamation, with changes to the proposed text as published in the April 23, 2004, issue of the Texas Register (29 TexReg 3940).

Attachments - 2

  1. Exhibit A - Proposed Amendments to the Raptor Proclamation
  2. Exhibit B - Fiscal Note

Commission Agenda Item No. 9
Exhibit A

Raptor Proclamation Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.263-65.265 and 65.270, concerning the Raptor Proclamation, which governs the take and possession of raptors and the practice of falconry in the state. The Texas Legislature in 1975 authorized the Parks and Wildlife Commission to regulate the taking, capture, possession, propagation, transportation, export, import, and sale of raptors, time and area from which raptors may be taken or captured, and species that may be taken or captured; to provide standards for possessing and housing raptors held under a falconry permit; to prescribe annual reporting requirements and procedures; to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; and to require and regulate the identification of raptors held by permit holders. The agency’s regulations governing falconers, falconry, and people who possess raptors historically have been formulated following close consultation with the department’s Falconry Advisory Board (FAB), which is composed of Texas residents who are permitted falconers. The department relies on the FAB for valuable advice in crafting the standards, requirements, and restrictions for various classes of falconry permits. The relationship between the department and the FAB allows for regulations that protect and promote the sport of falconry without creating onerous restrictions that might serve as an impediment to enjoyment of the resource or the sport. The proposed amendments are recommendations from the FAB.

The proposed amendment to §65.263(b)(1) adds the word ‘display’ in paragraph (1) to clarify that public display of raptors is limited to educational display. The change is intended to prevent misunderstandings by specifically restricting the display of raptors to educational instances only. The amendment also adds language to subsection (b)(2) to allow apprentice falconry permit holders to perform public display activities with raptors, provided they are supervised by a general or master permit holder. The current regulation restricts display to general and master permit holders only, but the FAB has advised the department that there are circumstances (such as fairs, conferences, and other large events) where it is impossible for a single general or master permit holder to personally handle the public display of multiple birds. Therefore, the FAB recommends that apprentice permit holders be allowed to assist, but only under direct supervision.

The amendment to §65.264, concerning Applications and Permits, removes current subsection (b), which requires applicants to achieve a minimum score on an examination as a condition for receiving a permit. The requirement is not being eliminated, but is being relocated to §65.265(1), where it is more appropriate, since the exam score is a requirement only for those people seeking an apprentice permit.

The amendment to §65.265, concerning Permit Classes: Restrictions, restructures the section to consolidate all provisions related to qualifying for and maintaining a falconry permit in one place, making for easier reference. The proposed amendment also creates qualifications for various types and classes of permits. For apprentice permittees, the FAB recommends a minimum age of 14 for apprentice falconry permittees because it is at about that age that a person generally begins to develop the maturity necessary to apprehend the principles of falconry and to accept the responsibility necessary to care for and train raptors. The FAB further recommends that apprentices be sponsored by a general or master class permittee, because falconry is an exacting sport that cannot be learned or practiced correctly without expert guidance and training from someone very experienced in the sport. To this end, the proposed amendment also stipulates that apprentices trap their own birds, which is intended to be part of a conscientious program of training for apprentices in the rudiments of falconry, during which time they learn about the biology and behavior of raptors. Additionally the proposed rules would require apprentices to notify the FAB and the department within 30 days of a sponsorship termination, which is necessary to ensure that apprentices do not attempt to practice falconry without being supervised. The proposed amendment also stipulates that an apprentice permittee may not replace a raptor more frequently than once per year in order to discourage the irresponsible use of wildlife resources by preventing the frequent replacement of birds by apprentices who for whatever reasons cannot maintain effective control of a bird in their possession. The amendment also would prohibit apprentice permittees from taking eyas raptors. An eyas bird is a raptor that is still in the nest and has not fledged. At that age, the bird in untrained hands is in danger of being imprinted, becoming unnaturally attached to a human being as a surrogate parent or social equal. Such birds can be dangerous to their handlers, and it is inappropriate to release imprinted birds to the wild, because they have not been socialized to interact with other birds or fend for themselves. Experienced falconers are able to take eyas birds and rear them in such a fashion that they do not become imprinted.

The amendment also establishes qualifications and restrictions for general class permittees, specifying that they be at least 18 years of age, have two years of experience in falconry at the apprentice level (having flown a bird for at least four months in each year, as certified by a sponsor), that they possess no more than two raptors at any time, that they not replace raptors more frequently than twice per year, and that they notify the department within five days of sponsorship termination. The requirement of documented activity (as certified by the sponsor) is recommended by the FAB to prevent acquisition of a general class permit simply on the basis of elapsed time, without having demonstrated sufficient commitment to the sport. Therefore, the FAB’s recommendations reflect a progressive, incremental approach that gradually increases permit privileges based on supervised performance. Based on the skills acquired at the apprentice level, the general class permittee is allowed to keep an additional bird (which necessitates a replacement privilege of one additional bird per year). The notification requirement is to allow the department to track apprentice level permittees and ensure that apprentices are supervised. At the master class level, the permittee must have at least five years of experience as a general class permittee, is allowed to keep up to three birds in possession, may not replace more than three birds per year, and must notify the department within five days of sponsorship termination. Finally, the amendment would require an applicant for a raptor propagator permit to have five years of experience in falconry and be a general or master class permittee. Under the current rule, an applicant must have at least five years of experience at the apprentice level. The FAB recommends that no person be engaged in raptor propagation who is not qualified to practice falconry alone.

The amendment to §65.270, concerning Marking, would require persons acquiring an unmarked gyrfalcon, Harris hawk, or peregrine falcon to be mark the bird with a department-supplied band within two days of acquiring the bird. The current rule as written is impossible to comply with for persons seeking to possess an unmarked bird, since the marker supplied by the department cannot be issued unless the bird is in possession; however, if the bird is in possession without being marked, an offense has been committed. By applying the section’s provisions to unmarked birds and providing a two-day window for acquiring the band, the department seeks to implement a regulation that is easier to comply with and understand.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules. The proposed rules do not impose fees or require additional expenses to be incurred by the agency.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the use of a public resource by means of the regulated trapping, possession, and use of raptors for falconry purposes.

(B) There will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

(E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.

4. Request for Public Comment.

Comments on the proposed rule may be submitted to Jennifer Blecha, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4481 (e-mail: Jennifer.blecha@tpwd.state.tx.us).

5. Statutory Authority.

The new section is proposed under the authority of Parks and Wildlife Code, §49.014, which authorizes the department to prescribe rules for the taking, capture,

possession, propagation, transportation, export, import, and sale of raptors, time and area from which raptors may be taken or captured, and species that may be taken or captured; to provide standards for possessing and housing raptors held under a permit; to prescribe annual reporting requirements and procedures; to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; and to require and regulate the identification of raptors held by permit holders.

The proposed amendments affect parks and Wildlife Code, Chapter 49.

§65.263. General Provisions.

(a) No person shall take or possess a raptor in this state unless that person possesses valid state and federal permits to do so.

(b) Public display of raptors shall be:

(1) for educational display purposes only; and

(2) shall be performed only by general or master permit holders or apprentice permit holders under the direct supervision of a general or master permit holder.

(c) General and master permittees may not sponsor more than three apprentices at one time.

§65.264. Applications and Permits.

(a) All permit applications shall be made using forms supplied by the department and shall be submitted with a copy of the applicant's federal falconry permit, or a copy of the completed application for the federal falconry permit.

(b) [No permit shall be issued until the applicant has passed, with a minimum score of 80, a supervised, department-administered falconry examination.]

[(c)] Upon receipt of a completed application and applicable fees [When the requirements of subsections (a) and (b) of this section have been met, and the department has received the applicable fees from the applicant], the department shall forward the application to the U.S. Fish and Wildlife Service for concurrence and final processing prior to the issuance of a state permit.

(c)[(d)] No state permits shall be issued until the applicant's facilities have passed an inspection conducted by a department representative.

(d)[(e)] Permits may be issued for any period of time not exceeding three years from date of issuance and shall expire on June 30.

(e)[(f)] The requirements of subsections (b)–(d)[(b)-(e)] do not apply to applications for a nonresident trapping permit.

§65.265. Permit Classes: Qualifications and Restrictions. A person who is not a resident of this state may not hold any permit issued under this subchapter other than a nonresident trapping permit.

(1) Apprentice class permittees.[:]

(A) Qualifications. An applicant for an apprentice falconry permit must:

(i) be at least 14 years of age;

(ii) have a sponsor at the general or master class during their apprenticeship; and

(iii) have passed, with a minimum score of 80, a supervised, department administered falconry examination.

(B) Restrictions. An apprentice class permittee:

(i) may possess only one of the following: American kestrel (Falco sparverius), red-tailed hawk (Buteo jamaicensis), or red-shouldered hawk (Buteo lineatus). A bird in possession of an apprentice under this subparagraph must have been trapped by the apprentice. Any red-tailed hawk or red-shouldered hawk in possession must have been captured as a passage bird; [and]

(ii) [(B)] may not replace a raptor more than once between July 1 of one year and June 30 of the immediately following year;

(iii) must secure a new sponsor within 30 calendar days in the event of sponsorship termination. Failure to secure a new sponsor and notify the department in writing may result in permit revocation; and

(iv) may not take eyas raptors[during any 12-month period].

(2) General class permittees:

(A) Qualifications. An applicant for a general class falconry permit must:

(i) be at least 18 years of age;

(ii) have at least two years of verified experience at the apprentice level. Verification shall be in the form of a signed affidavit(s) from the applicant’s sponsor(s) attesting that the applicant has flown a bird possessed under the applicant’s permit for a minimum of four months/per year over each twelve-month period of the apprenticeship.

(B) Restrictions. A general class permittee:

(i) may not possess more than two raptors; [and]

(ii) [(B)] may not replace more than two raptors between July 1 of one year and June 30 of the immediately following year; and

(iii) must send written notification to the department within five calendar days in the event of sponsorship termination[during any 12-month period].

(3) Master class permittees:

(A) Qualifications. An applicant for a master class falconry permit must have at least five years of experience of falconry at the general level.

(B) Restrictions. A master class permittee:

(i) may not possess more than three raptors; [and]

(ii)[(B)] may not replace more than three raptors between July 1 of one year and June 30 of the immediately following year; and

(iii) must send written notification to the department within five calendar days in the event of sponsorship termination[during any 12-month period].

(4) Raptor propagator:

(A) Qualifications. An applicant for a raptor propagator permit must:

(i) be a resident of Texas;

(ii) be 18 years of age or older; [and]

(iii) have at least five years of experience in the practice of falconry; and

(iv) possess a valid general or master permit [at the apprentice level, or its equivalent].

(B) Restrictions. Raptor propagators may not possess or breed species of raptors listed as endangered unless the propagator can document proof of seven years' experience caring for and handling raptors.

(5) Nonresident trapping permittees:

(A) Qualifications: An applicant for a nonresident trapping permit must possess a license, issued by their state of residence, equivalent to the Texas general or master falconer license.

(B) Restrictions: A nonresident shall not trap more than one raptor per year in this state.

§65.270. Marking.

(a) No person may possess an unmarked gyrfalcon, peregrine falcon, or Harris hawk [may be acquired] under a permit issued pursuant to this subchapter unless the person has notified the department within two days of acquisition. Upon notification, the department shall issue [acquiring the raptor first obtains] a numbered nonreusable marker supplied by the U.S. Fish and Wildlife Service, which[. The marker] must be attached to the raptor immediately upon receipt [acquisition].

(b) It is unlawful for any person to alter, counterfeit, or deface a marker, except that a permit holder may remove the rear tab on markers and smooth an imperfect surface, provided the integrity of the marker and numbering are not affected.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


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