Commission Agenda Item No. 5
Exhibit A

RATPOR PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§65.264, 65.267, and 65.270, concerning the Raptor Proclamation, which governs the practice of falconry. The practice of falconry is regulated at both the state and federal levels. The federal authority to regulate falconry is derived from the Migratory Bird Treaty Act, an international treaty to which the United States is a signatory. As with all migratory bird rules, the states may adopt rules that are more restrictive than the federal rules, but may not adopt rules that are less restrictive.

         The proposed amendment to §65.264, concerning Permit Application Requirements, would clarify flight-time requirements for apprentice permittees. The current rules require an applicant for a general permit to have “maintained (to include capture from the wild), trained, flown (which may include releasing to the wild) and hunted with raptors in the applicant’s possession for at least four months in each of at least two years during which the person has been permitted to practice falconry.” The department has become aware that at least one person interprets the provision to mean that the two years of experience can be attained with a bird that was not trapped from the wild by the apprentice (i.e., a bird trapped by another falconer or obtained from another falconer). This is not the intent of the requirement. The purpose of the apprentice level of falconry permit is to ensure that a person entering the sport of falconry be mentored and supervised by an experienced falconer for two years before being allowed to obtain a permit that allows that person to practice falconry alone. In this way, the department can be reasonably confident that a person who enjoys the privilege of possessing and using a live, publicly-owned wildlife resource has received the proper training in the care of raptors, raptor biology/ecology, and the art of trapping and using raptors for hunting purposes and can be expected to behave responsibly if issued a general falconry permit.  The proposed amendment would make clear that requirements of the provision can be satisfied only by means of a raptor trapped from the wild by the apprentice, unless the raptor was trapped by a general or master permittee under a physician’s statement.

         The proposed amendment to §65.267, concerning Permit Privileges and Restrictions, would remove the prohibition on the possession of non-sterilized raptors by apprentice falconers. In 2010, the U.S. Fish and Wildlife Service revamped the federal regulations governing the possession and use of native raptors. Prior to 2010, federal rules prohibited the possession of hybridized raptors by apprentice falconers. When the department reorganized falconry regulations in 2010, that prohibition was inadvertently retained. Because federal regulations no longer prohibit the possession of unsterilized hybridized raptors by apprentice falconers, the department sees no reason to retain the prohibition.

         The proposed amendment to §65.267 would also alter subsection (e) to remove the provision that prohibits the issuance of a nonresident trapping to a resident of a state that does not allow Texas residents to trap raptors in that state. Only four states do not allow nonresidents to trap raptors (Alaska, Connecticut, Vermont, and West Virginia). Staff have determined that in the interests of streamlining the permit process, the provision is no longer necessary.

         The proposed amendment to §65.270, concerning Notification, Reporting, and Recordkeeping Requirements, would alter subsection (f) to clarify requirements for falconers licensed in another state who relocate to Texas. Under Parks and Wildlife Code, §49.003,  a person in possession of a raptor under a license issued by another state who intends to establish residency in this state must apply to the department for a falconry permit not later than the 10th day after the date the person first moves a raptor into the state. Under current rule (§65.270(f)), a person who relocates to Texas and holds the valid equivalent of a Texas falconry permit issued by another state, territory, or tribe may retain raptors the person lawfully possesses; however, the person is required to submit an application for the appropriate Texas permit within 30 days of relocation to this state. The proposed amendment would make the regulatory timeframe consistent with the statutory requirement for permit application; clarify that a person who has complied with these provisions may practice falconry, including hunting, in the interim while waiting for the issuance of a Texas falconry permit; however, the person must purchase a non-resident hunting license if the person hunts by means of falconry in Texas.

2. Fiscal Note.

         Matt Reidy, Wildlife Biologist, 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.

3. Public Benefit/Cost Note.

         Mr. Reidy 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 clearer rules that enhance enforcement and compliance.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the proposed amendments will not impose any direct adverse economic effects on small businesses, microbusinesses, or persons required to comply. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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

         (E) 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 rules.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, Chapter 49, which authorizes the commission 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; provide standards for possessing and housing raptors held under a permit; prescribe annual reporting requirements and procedures; prescribe eligibility requirements and fees for and issuance of any falconry, raptor propagation, or nonresident trapping permit; §61.054 , which requires the commission to specify the means or method that may be used to hunt, take, or possess game animals, game birds, or aquatic animal life; and Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

         The proposed amendments affect Parks and Wildlife Code, Chapters 49, 61, and 67.

6. Text.

         §65.264. Permit Application Requirements.

                 (a) (No change.)

                 (b) Educational or school programs may not be used to satisfy the experience requirements of paragraphs (1) — (4) of this subsection.

                         (1) (No change.)

                         (2) An applicant for a general falconry permit must be at least 16 years of age.

                                  (A) (No change.)

                                  (B) An application for a general permit must be accompanied by a signed attestation from the applicant’s sponsor, who must be a general or master falconer, that the applicant has maintained [(to include capture from the wild)], trained, flown (which may include releasing to the wild) and hunted with raptors trapped from the wild by the applicant[in the applicant’s possession] for at least four months in each of at least two years during which the person has been permitted to practice falconry. The trapping requirement of this subparagraph does not apply to a raptor trapped under the provisions of 65.271(e)(3) of this title (relating to Trapping).

                         (3) – (5) (No change.)

                 (c) – (g) (No change.)

         §65.267.  Permit Privileges and Restrictions.

                 (a) Apprentice falconers.

                         (1) – (2) (No change.)

                         (3) An apprentice falconer may not:

                                  (A) – (C) (No change.)

                                  (D) take or possess:

                                          (i) an eyass;

                                          (ii) an imprinted raptor; or

                                          (iii) [a hybrid that has not been sterilized; or]

                                          [(iv)] a raptor taken from the wild as a nestling.

                         (4) – (5) (No change.)

                 (b) – (d) (No change.)

                 (e) Nonresident trapping permittees.

                         [(1) The department will not issue a nonresident trapping permit to any person who is a resident of a state that does not allow Texas residents to trap raptors in that state.]

                         [(2)] A nonresident trapper shall not trap more than one raptor per year in this state.

                 (f) (No change.)

         §65.270. Notification, Reporting, and Recordkeeping Requirements.

                 (a) – (e) (No change.)

                 (f) A person who relocates to Texas and holds the valid equivalent of a permit issued under this subchapter issued by another state, territory, or tribe may retain, on a temporary basis until notified by the department that a falconry permit is being issued or denied, raptors the person lawfully possesses pursuant to such permit; however, the person shall submit an application for the appropriate Texas permit within 10[30] days of relocation to this state. The department will not issue a permit until the applicant’s facilities have passed an inspection conducted by a department representative or designee. All inspections shall be in the presence of the permittee or the property owner (if the facility is located on property that is not owned by the permittee). A person who has complied with the requirements of this subsection and Parks and Wildlife Code, §49.003 may practice falconry, including hunting by means of falconry,  in this state while awaiting the issuance of a Texas falconry permit, provided:

                         (1) the person is not otherwise legally prohibited from possessing or hunting with raptors; and

                         (2) if the person hunts by means of falconry, the persons possesses a non-resident hunting license that is valid for the species being hunted.

         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