Commission Agenda Item No. 2
Presenter: Matt Reidy

Action
Raptor Proclamation Rules
Recommended Adoption of Proposed Changes
November 7, 2018

I.      Executive Summary:  With this item, the staff seeks adoption of proposed amendments to rules governing the possession and use of raptors for falconry purposes. The proposed amendments would:

• replace the specific web address of the federal reporting site with a general reference; and
• clarify provisions regarding the transfer of wild-caught raptors to falconers in other states. 

II.    Discussion:  Under Texas Parks and Wildlife Code, chapter 49, the Texas Parks and Wildlife Commission may prescribe rules for the taking, capture, possession, propagation, transportation, export, import, and sale of raptors; the times and areas 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 issue any falconry, raptor propagation, or nonresident trapping permit; and require and regulate the identification of raptors held by permit holders.

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 amendments are the result of recommendations by the Falconry and Raptor Council (an ad-hoc group of licensed falconers that assists Texas Parks and Wildlife Department in developing and improving falconry regulations) and are intended to improve oversight, streamline reporting, and facilitate compliance while discharging the agency’s statutory duty to protect the raptor resources of the state.

At the Commission Work Session meeting on August 22, 2018, the staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the September 28, 2018 issue of the Texas Register (43 TexReg 6441).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  The staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to §65.269, §65.270, and §65.272, concerning the Raptor Proclamations, with changes as necessary to the proposed text as published in the September 28, 2018 issue of the Texas Register (43 TexReg 6441).”

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Commission Agenda Item No. 2
Exhibit A

RAPTOR PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§65.269, 69.270, and 65.272, concerning the Raptor Proclamation.

        The proposed amendments to §65.269, concerning Marking, Banding, and Telemetry, and §65.270, concerning Notification, Reporting, and Recordkeeping, would replace references to a specific URL with a general reference. The sport of falconry is regulated at both the federal and state levels. Federal rules require certain raptors possessed in captivity to be banded for identification purposes, and stipulates the electronic reporting of band numbers to the U.S. Fish and Wildlife Service (FWS) under various circumstances. The current rule identifies a specific URL to be used for that purpose; however, that URL is no longer functional, as it has been replaced by another. Rather than specify the URL by rule, the department believes it is prudent to refer generically to the database maintained by the FWS for the purposes of reporting band numbers.

        The proposed amendment to §65.272, concerning Transfer, Sale, and Donation, would clarify rules regarding the transfer of wild-caught raptors to falconers in other states. The current rule stipulates that no person may transfer more than one wild-caught raptor to an out-of-state resident in any 12-month period, but confusion exists as to whether the provision applies in aggregate (i.e., to raptors in the possession of a falconer that were caught in different years) or only to the year in which a raptor was caught. The proposed amendment would specifically state that a wild-caught raptor could be transferred in the same year it was trapped, but limit such transfers to one per year.

2. Fiscal Note.

        John Davis, Wildlife Diversity Program Director, has determined that for each of the first five years that the amendments as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the regulation of falconry activities in Texas consistent with federal law and the provision of opportunity for citizens to trap, possess, and hunt with raptors.

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

        (B) 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, micro-businesses, or rural communities. 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 rules will not affect small businesses, micro-businesses, or rural communities. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (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 rules 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 rules.

        (E) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (F) In compliance with the requirements of Government Code, §2001.024, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Megan Nelson at (512) 389-4434, email: megan.nelson@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

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 issue any falconry, raptor propagation, or nonresident trapping permit;  and require and regulate the identification of raptors held by permit holders.

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

6. Rule Text.

        §65.269. Marking, Banding, and Telemetry.

                 (a) Markers and bands.

                         (1) (No change.)

                         (2) A person who takes a goshawk, Harris’s hawk, peregrine falcon, or gyrfalcon from the wild or acquires one from a rehabilitator must band the raptor with a Type 1 leg band. Within ten days from the date of take, the person shall report the take of the bird by entering the required information (including the band number) in the electronic database maintained by the FWS for that purpose [at http://permits.fws.gov/186A]. Upon request, the department will supply a band in advance of capture.

                         (3) A person who possesses a raptor bred in captivity must band the bird with a Type 2 leg band. If the band required by this subsection is removed or lost, it must be reported within ten days of removal or loss by contacting the department. The department shall issue a replacement band upon notification. The person shall band the bird with the replacement band immediately upon receipt of the band and immediately upon rebanding shall submit all required information electronically to the database maintained by the FWS for that purpose [at http://permits.fws.gov/186A].

                         (4) If a band is removed or lost from a raptor that is not captive-bred, the person in whose name the raptor is possessed must report the removal or loss within five days and request a replacement band from the department. The person shall band the bird with the replacement band immediately upon receipt and shall submit the required information electronically immediately upon rebanding to the database maintained by the FWS for that purpose [at http://permits.fws.gov/186A].

                         (5) – (7) (No change.)

                 (b) (No change.)

        §65.270. Notification, Reporting, and Recordkeeping.

                 (a) (No change.)

                 (b) A permittee shall maintain a copy of all notifications required under this section for a period of five years. Notification under this subsection shall be made via the electronic database maintained by the FWS for that purpose[at http://permits.fws.gov/186A]. Except as specifically provided by paragraph (6) of this subsection, notification shall be within ten days of any event condition listed in this subsection. A permittee is required to provide notification:

                         (1) – (7) (No change.)

                 (c) – (f) (No change.)

        §65.272. Transfer, Sale, and Donation.

                 (a) – (b) (No change.)

                 (c) A lawfully caught wild raptor may be transferred to a qualified out-of-state resident in the same year that it was trapped; however, no person may make more than one such transfer per permit year. [No person may transfer more than one wild-caught raptor to an out-of-state resident in any 12-month period.]

                 (d) – (h) (No change.)

        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