ENV-12-13-00006-P New York State Falconry Regulations

3/20/13 N.Y. St. Reg. ENV-12-13-00006-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 12

March 20, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-12-13-00006-P

New York State Falconry Regulations

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of Part 173 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-1001, 11-1003, 11-1007 and 11-1009

Subject:

New York State Falconry Regulations.

Purpose:

To implement changes to New York State's falconry regulations.

Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):

The purpose of this rulemaking is to amend the Department of Environmental Conservation’s (department) general regulations governing the sport of falconry (6 NYCRR Part 173). These changes are necessary to bring the New York State regulations in compliance with the changes to the Federal regulations governing the sport of falconry which became effective in 2008. Changes were also made in 2012 to Environmental Conservation Law § 11-1003, Falconry License, changing the fee and term of falconry licenses.

The following is a summary of amendments that the department is proposing:

173.1 Definitions

• The following definitions are to be added to the regulation: Abatement, Conservation Education, Hacking, Hybrid, Imping and Native. The definition of Raptor will be removed and this section will now reference the statutory definition of raptor found in ECL 11-1001.

173.2 Falconry License

• The term for a falconry license is now 5 years and the fee for a license is 40 dollars as changed in ECL 11-1001 in April of 2012.

• Applications for an Apprentice Falconry license will now require a parent or guardian signature for applicants under the age of 18.

• In order for an Apprentice to qualify for the General falconry license they must have been licensed at the Apprentice falconer level for a minimum of 2 years and have possessed, trained, maintained and flown the raptor(s) for at least 4 months in each year.

• General falconers may now possess up to three raptors at any one time (previously limited to 2) and must have at least two years of experience in the practice of falconry as a licensed general falconer before they can sponsor an apprentice.

• Master falconers - may now possess up to 13 raptors (previously could only possess 5). They will be limited to possession of only 5 raptors taken from the wild at any given time and may possess up to three white-tailed eagles or Steller’s sea eagles. They must be approved by the department and the Falconry Advisory Board prior to possessing an eagle for falconry.

• As per federal allowance, a license can be re-instated if it has lapsed for less than 5 years. If lapsed more than 5 years then the falconer must go through all the steps of becoming licensed including taking a falconry exam.

173.3 Acquisition of Raptors

• The requirement of submitting a raptor capture authorization form and receiving the department's approval prior to taking a raptor from the wild during the authorized take seasons is removed. The falconry license now provides the authority for take provided the falconer is authorized to take the species of raptor, is within their limit for take of raptors from the wild for that calendar year and reports the bird as required by regulation.

• The federal restriction limiting the number of days to 180 for take of raptors from the wild has been lifted. As a result, we are expanding the seasons for take of raptors from the wild in New York State as follows: Passage capture season in NYS is to be extended through the end of January (previously ended on January 25) and would now go from September 1 through January 31 inclusive. The eyas capture season, which previously was limited to Fridays, Saturdays and Sundays from May 1 to July 15 would now run from May 1 to July 31 inclusive and would also be extended for the capture of nestling great horned owls from February 1 to July 31 inclusive in order to allow falconers the opportunity to trap nestling great horned owls during the time period when they are still in the nest.

• The new regulations clearly define a falconer's responsibility for reporting the take of a wild raptor in various situations. A falconer who will be receiving a wild caught raptor who is present at the capture site where the raptor is taken from the wild is considered the person who removes the bird from the wild even if another individual captures the bird. The falconer receiving the bird from the person who captured the bird is responsible for reporting the take of the bird and the bird will count as one of the raptors the falconer receiving he bird is allowed to capture in that year.

• A falconer who will be receiving a wild caught raptor but is not at the capture site where a raptor is taken from the wild is not considered the person who removes it from the wild. The person who captures the raptor from the wild must be a General or Master falconer and is responsible for reporting the take of the bird. The bird will count as one of the raptors that the person who captured the bird from the wild is allowed to take that year. An exception has been made for a falconer who has a long term or permanent physical impairment that prevents him or her from attending the capture of a raptor from the wild. In this case, the falconer with the impairment may have another licensed General or Master falconer capture the bird for them. The falconer who is unable to attend the capture is responsible for reporting the take of the bird and the bird will count as one of the birds he or she is allowed to take from the wild that year.

173.4 Possession of Raptors

• No changes are proposed for this Section

173.5 Hunting with Raptors

• The only change to this section is that all hybrid raptors must have at least two radio transmitters attached to them when free flown for falconry.

173.6 Care of Raptors

• The only change to this section is to require that a falconer provide pan of clean water for each raptor in their care.

173.7 Disposition of Raptors

• Falconers are now required to report the take, acquisition, transfer, re-banding, microchipping, release, death, loss or theft of a raptor through the USFWS website and electronically record these transactions. For falconers who are unable to record these transactions electronically, they must submit a paper copy of the USFWS 3-186A form to the department. The department must then ensure that the data gets entered electronically through the USFWS web page.

• The authority of the falconry license has been expanded to allow for limited propagation and limited public education using falconry birds held under the authority of a falconry license and assisting wildlife rehabilitators in the care and evaluation of recovering raptors.

• A falconer may use a raptor held under a falconry license for captive propagation without transferring the bird from their falconry license provided the bird is used for fewer than 8 months in captive propagation and the falconer has a federal license authorizing the propagation of the raptor.

• A General or Master falconer may use raptors held under their falconry license for conservation education programs provided that the raptors are used primarily for falconry and the programs address falconry and conservation education. The programs cannot be conducted for profit, however, a falconer may charge a fee for the presentation provided the fee does not exceed the cost required to recoup the cost of presenting the program.

• A General or master falconer may assist a licensed wildlife rehabilitator to condition and/or evaluate raptors in preparation for release to the wild. The falconer may keep the bird they are helping to rehabilitate at the falconer's facilities provided: the rehabilitator provides the falconer with a written letter that identifies the bird and explains that the falconer is assisting the rehabilitator; the falconer returns any such bird that cannot be permanently released to the rehabilitator; the falconer, upon coordination with the rehabilitator, releases the bird to the wild or returns it to the rehabilitator. The falconer who is assisting a rehabilitator to condition raptors does not have to add the bird to their falconry license.

• A General or Master falconer may obtain a first year raptor of a species that he or she is authorized to possess directly form a licensed wildlife rehabilitator. A raptor acquired from a rehabilitator will count as one of the birds the falconer is allowed to take from the wild that year.

173.8 Marking of Raptors

• Captive bred raptors may now have an International Organization for Standardization (ISO) compliant (134.2 kHz) microchip implanted within them or seamless metal band.

• Wild caught Northern goshawks are now required to be banded with either a permanent, non-reusable USFWS leg band or have an implanted (ISO) compliant (134.2 kHz) microchip. The previous requirements for banding of all wild caught peregrine falcons, gyrfalcons and Harris's hawks is still required except the species may now have an implanted ISO compliant (134.2 kHz) microchip.

• If a band must be removed from a captive bred raptor or if the band is lost, the falconer must, within ten days from the day he or she removes the seamless band or note the loss of the band, report it and either request a replacement USFWS non-reusable leg band from the department to replace the lost or removed band or, implant an ISO compliant (134.2kHz) microchip in the bird.

• If a band must be removed from a wild raptor, the falconer must, within five days from the day the band is removed or loss is noted, report it and either request a replacement USFWS non-reusable leg band from the department to replace the lost or removed band or, implant an ISO compliant (134.2kHz0) microchip in the bird.

• Upon re-banding or microchipping a raptor, the falconer must immediately enter the required information in the USFWS electronic database at http://permits.fws.gov/186A or submit a paper Federal form 3-186A to the department.

173.9 Abatement

• A new section outlining the requirements for abatement is proposed to be added to the regulation.

• Master falconers would be authorized to use raptors held under the authority of their falconry license for abatement purposes.

• The Master falconer would be required to have a Federal Abatement permit prior to conducting these activities.

• Only captive bred raptors could be used for abatement activities.

• Migratory birds shall not be killed, captured or injured during the course of abatement activities unless such take is authorized by a Federal Depredation permit in which the falconer is identified as a subpermittee or under a Federal Depredation Order.

• The falconer is required to submit a copy of their Federal Abatement permit to the department and to maintain accurate records of abatement activities on a calendar-year basis.

173.10 Exception

• No changes are proposed for this Section

Text of proposed rule and any required statements and analyses may be obtained from:

Joseph Therrien, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4752, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

A programmatic environmental impact statement is on file with the Department of Environmental Conservation.

Regulatory Impact Statement

1. Statutory authority:

Section 11-1007 of the Environmental Conservation Law (ECL) directs the Department of Environmental Conservation (department) to promulgate rules and regulations pertaining to the issuance and use of falconry licenses giving due consideration to the recommendations of the Falconry Advisory Board, established by section 11-1005. Concurrently, Sections 11-1001, 11-1003, 11-1007 and 11-1009 provide additional definitions, license terms and prohibitions governing the sport of falconry.

2. Legislative objectives:

The legislative objective of the statutory provisions listed above is to establish, or authorize the department to establish by regulation, a license program authorizing the possession, training and use of raptors for falconry including setting seasons for the take of raptors from the wild, setting possession limits on the number of raptors authorized to be held, and establish the methods, requirements and prohibitions for flying raptors in New York State.

3. Needs and benefits:

The purpose of this rule making is to repeal the existing 6 NYCRR Part 173 in its entirety and a new Part 173 is proposed. This extensive revision is necessary because numerous changes were made to the federal regulations which govern the sport of falconry, specifically, 50 CFR 21.29, 21.31 and 22.2 by the U.S. Fish and Wildlife Service (USFWS) which is the lead agency for migratory birds. These federal changes require that all states conform with the new federal falconry regulations by January 2014. If a state does not comply by that time then falconry will not be allowed in that state.

Changes were also made to ECL Section 11-1003 in April of 2012 which affect falconry licenses in New York State. These changes made portions of the existing regulations obsolete or in direct conflict with the new regulations and statutes. Briefly, these changes provide regulatory relief for people who engage in falconry while at the same time ensuring the welfare of wild and captive-bred raptors.

The proposed rule would extend the license term from two years to five years and reduce the fees associated with obtaining a falconry license. The rule would also substantially reduce the paperwork and form submissions currently required of falconers

The proposed rule would increase the number of raptors that general and master falconers are authorized to possess and authorize master falconers to possess Steller’s sea eagles and white-tailed eagles for falconry and establish the requirements for obtaining and flying these species.

The proposed rule would increase the number of days for take of raptors from the wild for falconry, allow licensed falconers to use birds held under their falconry licenses for education, propagation, abatement activities and to assist wildlife rehabilitators in the care and conditioning of raptors prior to release.

The proposed rule clarifies the authorized activities using raptors and provides further clarity and distinction between wild caught and captive bred raptors including hybrids as to possession, transfer, sale, release and banding and telemetry requirements.

The proposed rule removes the requirement for submission and pre-approval of raptor capture authorization forms, and eliminates or reduces the previously required paper submission for all activities involving a raptor, i.e., capture, release, escape and death, and replaces the forms with electronic submission of this information.

4. Costs:

There are no costs to the department or local governments. Licensees will realize a cost savings from the decrease in license fees as well as time and costs savings associated with the decrease in paperwork requirements.

5. Local government mandates:

These amendments will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district.

6. Paperwork:

The proposed rule does not require any additional paperwork by any regulated entity. The rule will reduce the amount of paperwork and frequency of paperwork submission.

7. Duplication:

Federal regulations in 50 CFR 21.29, 21.31 and 22.24 govern the sport of falconry in the United States. The federal regulations require that states promulgate their own regulations authorizing the sport of falconry in their jurisdictions. All aspects of the falconry program including testing, licensing and inspection are the responsibilities of the individual states. Currently, falconers are required to possess both a state and federal falconry license. Once the proposed rule is adopted and subsequently accepted by the USFWS, falconers will no longer need to obtain a federal falconry license and instead will need only obtain a state license.

8. Alternatives:

The New York State Legislature has amended the falconry statutes changing the terms and fees for a falconry license and the USFWS had amended the federal falconry standards. The department met with the falconry advisory board several times to go over the proposed changes and have incorporated their input into the proposed rule. In order to maintain falconry in NYS we have to amend our current regulations to bring them into compliance with both our state statutes and federal regulations.

9. Federal standards:

The federal falconry standards appear in Title 50 of the Code of Federal Regulations Sections 21.29 and 22.24. The proposed rule does not exceed any minimum standards of the federal government.

10. Compliance schedule:

These regulations, if adopted, will become effective immediately. Once adopted, the federal falconry license will no longer be required as of the following January 2014. Compliance with the regulations will be in the form of an amended state license which will be an agency action. No additional steps will be required of the regulated community in order to come into compliance with the proposed regulations.

Regulatory Flexibility Analysis

The purpose of this rule making is to amend the New York State falconry regulations in order to implement the provisions of the new Federal falconry regulations (Code of Federal Regulations Parts 21.29 and 22.24) and to incorporate recent changes in New York State’s falconry statutes (Environmental Conservation Law section 11-1003). Regulations pertaining to falconry must be updated to remain in compliance with the Federal falconry regulations. The proposed rule making will provide regulatory relief by decreasing license fees, increasing the license term and reducing the amount of paperwork currently required of licensees.

The department has determined that the proposed rule will not impose an adverse impact as far as additional reporting, recordkeeping, or other compliance requirements on small business or local governments. There will be no impacts to local governments. The regulation sets out procedures by which a license for falconry may be obtained, the manner of acquisition of raptors, hunting methods, and requirements for the care of raptors. Because raptors cannot be bought and sold, no small businesses can be involved. None therefore would be affected in any way by this new regulation.

Since the department’s proposed rule making will not impose an adverse impact on businesses or local governments, including little effect on current reporting, recordkeeping or compliance requirements, the department has concluded that this proposed regulation does not require a Regulatory Flexibility Analysis.

Rural Area Flexibility Analysis

The purpose of this rule making is to amend the New York State falconry regulations in order to implement the provisions of the new Federal falconry regulations (Code of Federal Regulations Parts 21.29 and 22.24) and to incorporate recent changes in New York State’s falconry statutes (Environmental Conservation Law section 11-1003). Regulations pertaining to falconry must be updated to remain in compliance with the Federal falconry regulations. The proposed rule making will provide regulatory relief by decreasing license fees, increasing the license term and reducing the amount of paperwork currently required of licensees.

The department has determined that the proposed rule will not impose an adverse impact as far as additional reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. The regulation sets out procedures by which a license for falconry may be obtained, the manner of acquisition of raptors, hunting methods, and requirements for the care of raptors. The proposed regulation reduces the reporting requirements and increases the license term from 2 years to 5 years thereby reducing the frequency of license renewal and subsequent paperwork requirements.

Since the department’s proposed rule making will not impose an adverse impact on public or private entities in rural areas, including little effect on current reporting, recordkeeping or compliance requirements, the department has concluded that this proposed regulation does not require a Rural Area Flexibility Analysis.

Job Impact Statement

The purpose of this rule making is to amend the New York State falconry regulations in order to implement the provisions of the new Federal falconry regulations (Code of Federal Regulations Parts 21.29 and 22.24) and to incorporate recent changes in the state’s falconry statutes (Environmental Conservation Law section 11-1003). Regulations pertaining to falconry must be updated to remain in compliance with the Federal falconry regulations. The proposed rule making will provide regulatory relief by decreasing license fees, increasing the license term and reducing the amount of paperwork currently required of licensees.

Falconers purchase equipment and supplies for the raptors in their possession and maintain facilities for housing the birds. Although the proposed rule making authorizes an increase in the number of raptors a falconer may hold at one time, any increased expenditures for equipment and supplies will have a negligible, though positive, effect on local business sales. The proposed rule making will not have a substantial adverse impact on jobs or employment opportunities. Moreover, this rule making is not expected to adversely affect the number of participants or frequency of participation in the regulated activities.

For these reasons, the department anticipates that the proposed regulatory changes will not have an adverse impact on jobs or employment opportunities in New York, and that a Job Impact Statement is not required.