301 KAR 2:195E. Falconry, raptor take, and raptor propagation. [Raptor propagation and falconry.]

STATEMENT OF EMERGENCY

301 KAR 2:195E

This emergency administrative regulation establishes permitting, taking, possession, and reporting requirements for people engaged in falconry and raptor propagation in Kentucky. The U.S. Fish and Wildlife Service is requiring all states to assume the responsibility for oversight of falconry and raptor propagation. This directive requires all states to have in place a falconry exam, adequate regulations, and a means of tracking falconers and their birds within their state. This amended regulation meets the federal requirements. An ordinary administrative regulation will not suffice because the federal framework of reviewing and approving the new regulation did not allow sufficient time for our regulation to be reviewed and approved before January 1, 2013, which is a federal deadline. This emergency administrative regulation shall be replaced by an ordinary administrative regulation. The ordinary administrative regulation is identical to this emergency administrative regulation. The ordinary administrative regulation will be filed with the Regulations Compiler by December 28, 2012.

STEVEN L. BESHEAR, Governor

BENJY KINMAN, Deputy Commissioner

For DR. JONATHAN GASSETT, Commissioner

TOURISM, ARTS AND HERITAGE CABINET

Kentucky Department of Fish and Wildlife Resources

(Emergency Amendment)

301 KAR 2:195E. Falconry, raptor take, and raptor propagation. [~~Raptor propagation and falconry.~~]

RELATES TO: KRS 150.010,[~~150.025,~~] 150.180, 150.183, 150.290, 150.305, 150.320, 150.330, 150.360[~~, 50 C.F.R. Parts 13, 17, 21, 22~~]

STATUTORY AUTHORITY: KRS 150.025(1), 150.280(1),[~~150.025,~~ ~~150.028,~~] 50 C.F.R. Parts 13, 17, 21, 22

EFFECTIVE: December 28, 2012

NECESSITY, FUNCTION, AND CONFORMITY: KRS 150.025(1) authorizes the department to promulgate administrative regulations establishing open seasons for the taking of wildlife, bag limits, and methods of taking wildlife, and to make these requirements apply to a limited area. KRS 150.280(1) requires the department to promulgate administrative regulations establishing procedures for propagating and holding of protected wildlife. 50 C.F.R. Parts 13, 17, 21, and 22 establish requirements for permitting, taking, possessing, and selling of raptors and endangered and threatened species. This administrative regulation establishes permitting, taking, possessing, and reporting requirements for people engaged in falconry and raptor propagation.

Section 1. Definitions. (1) "Adult raptor" means a raptor that is at least one (1) year old.

(2) "Captive-bred raptor" means a raptor or the eggs thereof, hatched in captivity from parents in captivity.

(3) "Eyas" means a young raptor that is still in the nest and not capable of flight.

(4) "Hack" means the temporary release of a raptor held for falconry to the wild so that it can survive on its own.

(5) "Hybrid raptor" means an offspring produced by two (2) distinct raptor species.

(6) "Imprinted" means a raptor that has been hand-raised by a human in isolation from the sight of other raptors from two (2) weeks of age through fledging.

(7) "Native raptor" means a raptor species which has historically existed or currently exists in the wild in Kentucky without introduction by humans.

(8) "Passage bird" means a raptor less than one (1) year of age that is capable of sustained flight and is no longer dependent on parental care.

(9) "Wild raptor" means a raptor that was originally taken from the wild.

Section 2. Federal requirements. Except as established in Sections 3 through 11 of this administrative regulation, a person shall be in compliance with the federal requirements established in 50 C.F.R. Part:

(1) 13;

(2) 17;

(3) 21; and

(4) 22.

Section 3. Permits and Licenses. (1) A person shall be required to obtain and possess a falconry permit to take or possess a raptor for use in falconry.

(2) A person with a valid state or federal falconry permit:

(a) May take wildlife pursuant to applicable statewide requirements if the falconer:

1. Has a valid Kentucky hunting license; or

2. Is hunting license exempt pursuant to KRS 150.170; and

(b) Shall not be required to obtain a wildlife transportation permit pursuant to 301 KAR 2:081 and 2:082 if the person:

1. Is importing or transporting a legally held falconry raptor into Kentucky; or

2. Is transporting a legally held falconry raptor into and through Kentucky to a destination outside of Kentucky.

Section 4. Falconry Permit Requirements, Classes of Permits, and Apprentice Sponsors. (1) To obtain a falconry permit of any class, a person shall:

(a) Complete a Kentucky Falconry Permit Application form provided by the Department; and

(b) Submit to the department:

1. The completed application;

2. The appropriate fee as established in 301 KAR 3:022; and

3. A completed Raptor Facilities and Equipment Inspection Report form signed by a state conservation officer.

(2) An apprentice falconry permit applicant shall:

(a) Be at least twelve (12) years old;

(b) Obtain a sponsor who holds a Kentucky general or master falconry permit pursuant to subsection (10) of this section;

(d) Contact the department to schedule a time to take a written examination administered by the department; and

(e) Pass the written examination by scoring a minimum of eighty (80) percent.

(3) An apprentice class falconry permit holder shall:

(a) Only possess one (1) of the following wild or captive-bred raptors at any given time:

1. American kestrel (Falco sparverius);

2. Red-tailed hawk (Buteo jamaicensis);

3. Red-shouldered hawk (Buteo lineatus); or

4. Harris’ hawk (Parabuteo unicinctus); and

(b) Not possess a raptor:

1. Taken from the wild as a nestling; or

2. That is imprinted on humans.

(4) A general class falconry permit applicant shall:

(a) Be at least sixteen (16) years old;

(b) If under eighteen (18) years old, have a parent or legal guardian co-sign the application;

(d) Have complied with all previous year reporting requirements, if applicable, pursuant to Section 7 of this administrative regulation.

(5) A first time general class permit applicant shall also submit to the department a:

(a) Signed document from a general or master class falconry permit holder stating that the permit applicant has:

1. Practiced falconry with a wild raptor at the apprentice level for at least two (2) years; and

2. Maintained, trained, and hunted with a raptor for an average of six (6) months per year with at least four (4) months in each year;

(b) Summary of the species held as an apprentice; and

(6) A general class falconry permit holder shall:

(a) Be allowed to possess the following:

1. A raptor obtained from the wild;

2. A hybrid raptor; or

3. A captive-bred raptor; and

(b) Not possess more than three (3) of the following raptors at any given time:

1. Great horned owl (Bubo virginianus); or

2. Any member of the Order Falconiformes, except for the following species which shall not be possessed:

a. Golden eagle (Aquila chrysaetos);

b. Bald eagle (Haliaeetus leucocephalus);

c. White-tailed eagle (Haliaeetus albicilla); or

d. Stellar’s sea eagle (Haliaeetus pelagicus).

(7) A master class falconry permit applicant shall:

(a) Have held a general class falconry permit for at least five (5) years; and

(b) Have complied with all previous year reporting requirements, pursuant to Section 7 of this administrative regulation.

(8) A first time master class permit applicant shall submit to the department a signed letter attesting that the applicant has practiced falconry at the general class permit level for at least five (5) years.

(9) A master class falconry permit holder:

(a) Shall not possess more than five (5) of the following wild raptors at any given time:

1. Great horned owl; and

2. Any member of the Order Falconiformes except a bald eagle;

(b) Shall obtain prior approval from the department pursuant to the requirements of 50 C.F.R. 21 and 22 to possess any of the following raptors:

1. Golden eagle;

2. White-tailed eagle; or

3. Stellar’s sea eagle; and

(10) An apprentice sponsor shall:

(a) Not have more than three (3) apprentices at any given time;

(b) Be at least eighteen (18) years old;

(d) Have held a general class falconry permit for a minimum of two (2) years; and

(e) Submit a signed letter to the department:

1. Attesting that the sponsor will assist the apprentice in:

a. Learning about the husbandry and training of raptors held for falconry;

b. Learning relevant wildlife laws and regulations; and

c. Deciding which species of raptor is most appropriate for the apprentice to possess; and

2. Containing the sponsor’s:

a. Name;

b. Falconry permit number;

c. Address; and

d. Telephone number.

(11) A sponsor who is withdrawing sponsorship of an apprentice shall:

(a) Notify the department in writing within five (5) days of withdrawing the sponsorship; and

(b) Provide the apprentice with a signed and dated document stating the length of time that the apprentice practiced falconry under the sponsor’s guidance.

(12) An apprentice who loses sponsorship shall obtain a new sponsor within thirty (30) days from the sponsor’s notification of withdrawal.

(13) A new sponsor shall be in compliance with the requirements established in subsection (7) of this section.

(14) If an apprentice fails to obtain a new sponsor within thirty (30) days, the department shall:

(a) Revoke the apprentice’s falconry permit; and

(b) Confiscate any raptor in the apprentice’s possession if the apprentice does not transfer ownership of the raptor to another licensed falconer.

(15) A non-resident falconer who moves to Kentucky to establish residency shall apply for the appropriate Kentucky falconry permit within thirty (30) days after moving.

(16) A resident falconry applicant who is a new resident of the United States shall obtain the appropriate Kentucky falconry permit by:

(a) Meeting the application requirements established in subsection (1) of this section;

(b) Contacting the department to schedule a time to take a written examination administered by the department;

(d) Providing to the department written documentation of previous falconry experience including:

1. The number of years the applicant has practiced falconry;

2. The raptor species used in falconry; and

3. The game species taken with falconry.

(17) A person who held a Kentucky falconry permit within the last five (5) years, but has allowed the permit to lapse, may apply for reinstatement at the class level previously held by:

(a) Complying with the application requirements established in subsection (1) of this section; and

(b) Providing the department with proof of previous certification at that class level.

(18) A person whose Kentucky falconry permit has lapsed for a period greater than five (5) years may apply for reinstatement at the class level previously held by:

(a) Complying with the application requirements established in subsection (1) of this section;

(b) Complying with the examination requirements established in subsection (2) of this section; and

(19) A falconry permit holder shall not be required to pay the permit fee established in 301 KAR 3:022 if the permit holder’s current permit has not yet expired and the permit holder is applying for:

(a) An upgrade to the next falconry class; or

(b) A facility relocation.

Section 5. Facility, Equipment, and Care Requirements. (1) A falconry permit holder shall comply with all federal requirements established in 50 C.F.R. Part 21 for the permit holder’s:

(a) Facility;

(b) Equipment; and

(2) A falconry permit holder who is relocating a raptor facility shall:

(a) Notify the department within five (5) business days of relocation; and

(b) Have a relocated raptor facility inspected and approved by a department conservation officer within thirty (30) days of relocation.

(3) A department conservation officer shall only inspect a raptor facility:

(a) In the presence of the permit holder;

(b) On a weekday; and

Section 6. Banding, Tagging, and Telemetry Requirements. (1) A falconry permit holder shall comply with federal banding, tagging, and telemetry requirements established in 50 C.F.R. Part 21.

(2) A falconry permit holder who is required by federal regulations to band a raptor shall:

(a) Contact the department to request leg bands at least fifteen (15) days prior to obtaining a raptor; and

(b) Only use U.S. Fish and Wildlife Service leg bands that are issued by the department.

(3) A falconry permit holder shall attach at least two (2) radio transmitters to a hybrid raptor if the permit holder is flying it untethered in the wild.

Section 7. Raptor Take and Release, Recordkeeping, and Reporting Requirements. (1) Unless exempted by KRS 150.170, a Kentucky falconry permit holder shall have in possession a Kentucky hunting license when taking a raptor from the wild.

(2) When taking a raptor from the wild, a nonresident shall have in possession:

(a) A valid Kentucky nonresident hunting license;

(b) A valid falconry permit or equivalent from the nonresident’s home state; and

(3) To obtain a Kentucky Nonresident Raptor Take Form, a person shall:

(a) Print a copy of the form from the department’s Web site at fw.ky.gov; or

(b) Contact the department at 800-858-1549 and request a mailed copy.

(4) A person shall submit to the department a completed and signed Kentucky Nonresident Raptor Take Form at least fifteen (15) working days prior to the requested take date.

(5) A falconry permit holder shall be responsible for complying with all applicable federal requirements if taking raptors on federal land.

(6) A falconry permit holder who is a nonresident shall only take one (1) legal raptor in Kentucky per calendar year.

(7) An approved Kentucky Nonresident Raptor Take Form shall only be issued to a person whose state of residence allows a Kentucky resident to legally take a raptor from that state.

(8) A nonresident falconer who takes a raptor in Kentucky shall submit to the department a completed and signed Falconry Take Location Report within five (5) days of taking a bird.

(9) A licensed falconer shall comply with all raptor take requirements established in 50 C.F.R. 21 in addition to the requirements established in this section.

(10) A resident falconry permit holder shall not take more than two (2) raptors from the wild in any calendar year.

(11) An eyas shall only be taken:

(a) By a general or master class falconry permit holder; and

(b) From January 1 through July 31.

(12) A person shall not take more than one (1) sharp-shinned hawk (Accipter striatus) eyas per calendar year.

(13) There shall be an annual maximum quota for sharp-shinned hawk eyases of:

(a) Ten (10) for Kentucky residents; and

(b) Five (5) for nonresidents.

(14) Prior to taking a sharp-shinned hawk eyas, a person shall be responsible for calling the department at 800-858-1549 to check if the sharp-shinned hawk eyas annual quota has been reached.

(15) A person shall not take a sharp-shinned hawk eyas from a nest unless there are at least three (3) eyases in the nest.

(16) Each person who takes a sharp-shinned hawk eyas shall submit to the department the Falconry Take Location Report within five (5) days of possession.

(17) Any permit class falconer may take a passage bird if it is a species the falconer is allowed to possess as established in Section 4 of this administrative regulation.

(18) The allowable period of take for:

(a) A passage bird, other than a great horned owl, is September 1 through January 31;

(b) An adult or passage bird great horned owl is September 1 through October 31; and

(19) An adult American kestrel or adult great horned owl shall only be taken by a:

(a) General class permit holder; or

(b) Master class permit holder.

(20) A person shall not take a peregrine falcon (Falco perigrinus) from the wild in Kentucky.

(21) A person shall not release the following raptors into the wild:

(a) A non-native raptor;

(b) A hybrid raptor; or

(22) Prior to releasing a raptor into the wild, a person shall remove all leg bands from the bird.

(23) A falconry permit holder shall complete and submit to the department a federal form 3-186A or enter the required information in the federal database at http://permits.fws.gov/186A within five (5) days if a raptor is:

(a) Acquired;

(b) Transferred;

(d) Lost;

(e) Rebanded;

(f) Microchipped;

(g) Stolen; or

(h) Dead.

(24) A falconer shall retain copies of each submitted 3-186A form or the electronically submitted data for a minimum of five (5) years following a raptor’s:

(a) Transfer;

(b) Release;

(d) Death.

Section 8. Transfer of Ownership and Propagation. (1) A falconry permit holder may transfer ownership of a wild-caught raptor pursuant to 50 C.F.R. Part 21, but shall not engage in the following activities with wild-caught raptors:

(a) Selling;

(b) Purchasing;

(d) Bartering.

(2) A falconry permit holder may transfer a wild-caught raptor to a person who possesses a federal raptor propagation permit if:

(a)1. The raptor has been used in falconry for at least one (1) year for the following species:

a. Sharp-shinned hawk;

b. Cooper’s hawk (Accipter cooperii);

c. Merlin (Falco columbarius); or

d. American kestrel; or

2. The raptor has been used in falconry for at least two (2) years for all other legal species of raptor; and

(b) The person receiving the transferred bird possesses a state captive wildlife permit.

(3) A person who legally possesses a captive-bred raptor may engage in the activities listed in subsection (1)(a) through (d) of this section if:

(a)1. The transferred bird is marked with a metal leg band; or

2. The transferred bird is implanted with a microchip pursuant to 50 C.F.R. Part 21; and

(b) The person in receipt of the bird possesses:

1. The appropriate class falconry permit; or

2. A federal raptor propagation permit.

(4) A person shall not breed or propagate a native raptor without first obtaining:

(a) A federal raptor propagation permit, pursuant to 50 C.F.R. Part 21; and

(b) The appropriate Kentucky captive wildlife permit, pursuant to 301 KAR 2:081.

(5) A person who is propagating a native raptor shall submit to the department copies of all the following materials required by 50 C.F.R. Part 21:

(a) The raptor propagation application;

(b) Propagation records; and

(6) The materials required in subsection (5) of this section shall be submitted to the department by the same dates required in 50 C.F.R. Part 21.

Section 9. Other Activities. (1) A falconry permit holder may use a raptor for conservation education programs, pursuant to 50 C.F.R. Part 21.

(2) A falconry permit holder who is in compliance with the permit requirements for Special Purpose Abatement, pursuant to 50 C.F.R. Part 21, may receive payment for nuisance wildlife control work if the permit holder also possesses a Kentucky Commercial Nuisance Wildlife Control permit, pursuant to 301 KAR 3:120.

(3) A person may assist a permitted wildlife rehabilitator, as established in 301 KAR 2:075, in conditioning raptors for subsequent release into the wild if the person is:

(a) A general or master class falconry permit holder; and

(b) Working with a species the falconry permit holder is allowed to possess.

(4) A general or master class permit holder may hack a raptor if the permit holder contacts the department and provides the following information:

(a) The hack site location;

(b) The species of raptor;

(d) The planned hacking dates.

Section 10. Revocation of Permits and Appeal Procedure. (1) The department shall revoke the falconry permit of a person convicted of a violation of this administrative regulation for a period of one (1) year.

(2) A person may request an administrative hearing pursuant to KRS Chapter 13B if the person’s falconry permit is:

(a) Denied; or

(b) Revoked.

Section 11. Incorporation by Reference. (1) The following material is incorporated by reference:

(a) "Kentucky Falconry Permit Application", January 2013 edition;

(b) "Raptor Facilities and Equipment Inspection Report", January 2013 edition;

(d) "Kentucky Nonresident Raptor Take Form", January 2013 edition.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department of Fish and Wildlife Resources, #1 Sportsman’s Lane, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. Eastern Time.[KRS 150.025 authorizes the department to promulgate administrative regulations governing the taking of wildlife. 50 C.F.R. Parts 13, 17, 21, and 22 authorize the protection of endangered species and birds of prey. This administrative regulation establishes the requirements for the propagation of raptors and for falconry.

Section 1. Definitions. (1) "Exotic raptor" means those species which have no subspecies occurring in the wild in the United States or Mexico and which require the holding of a joint state and federal falconry permit to lawfully possess.

(2) "Legal hunting raptor" means the great horned owl (Bubo virginianus) and all hawks and falcons of the families Falconidae and Accipiteridae, except those that are endangered or threatened and under conditions described in Section 4(1)(c) of this administrative regulation, golden eagles (Aquila chrysaetos) as well as threatened species.

Section 2. Except as provided by Sections 3 through 11 of this administrative regulation, C.F.R. Part 13, General Permit Procedures; Part 17, Subpart 17.11, Endangered and Threatened Wildlife; Part 21, Migratory Bird Permits; and Part 22, Eagle Permits shall apply to the propagation of raptors and falconry.

Section 3. Hunting License, Falconry Permit Requirements and Transportation Permit Waiver. (1) Wildlife may be taken within state hunting seasons and bag limits with any legal hunting raptor provided the falconer has a valid state or federal falconry permit and a valid Kentucky resident or nonresident hunting license in his or her possession.

~~(2) A licensed falconer may undertake intrastate transportation of any legally held raptor without possessing a transportation permit as required in 301 KAR 2:081 and 2:082.~~

~~Section 4. Classes of Falconry Permits, Sponsors, Application, Processing and Issuance, Examination Required, Duration of Permits and Fees. (1) Classes of falconry permits.~~

~~(a) Apprentice falconry permits.~~

~~1. An apprentice falconer shall be at least fourteen (14) years of age and shall have a sponsor holding a general or master falconry permit.~~

~~2. An applicant between the ages of fourteen (14) and sixteen (16) years shall provide a written consent form or letter from a parent or guardian.~~

3. An apprentice may take and possess only one (1) nonexotic raptor, which shall be taken from the wild, and shall not take more than one (1) replacement from the wild during any twelve (12) month period which begins when the first replacement raptor is taken from the wild.

4. Only an American kestrel (Falco Sparverius), red-tailed hawk (Buteo jamaicensis), red-shouldered hawk (Buteo Lineatus), or any exotic legal hunting raptor may be possessed or taken by an apprentice falconer.

~~5. The red-tailed and red-shouldered hawks shall be first year (passage) age class birds, capable of flight.~~

~~6. Any American kestrel which has left the nest and is capable of flight may be taken from the wild.~~

~~7. There shall be no age restriction on exotic raptors.~~

~~8. An apprentice falconer may buy and sell only exotic raptors.~~

~~(b) General falconry permits.~~

~~1. A general permittee shall be:~~

~~a. At least eighteen (18) years of age;~~

~~b. Have at least two (2) years experience in the practice of falconry at the apprentice level; and~~

~~c. Have complied with all reporting requirements of this administrative regulation.~~

2. A permittee at the general level may possess no more than two (2) nonexotic raptors and shall not take more than two (2) replacements from the wild during any twelve (12) month period which begins when any replacement raptor is taken from the wild.

~~3. A general permittee may take and possess any legal hunting raptor defined in this administrative regulation.~~

~~(c) Master falconry permits.~~

~~1. A master permittee shall have at least five (5) years experience in the practice of falconry at the general class level and have complied with all requirements of this administrative regulation.~~

~~2. A master permittee may possess no more than three (3) nonexotic raptors.~~

~~3. No more than two (2) raptors for replacement birds shall be taken from the wild during any twelve (12) month period which begins when any replacement raptor is taken from the wild.~~

4. A master permittee may take and possess any legal hunting raptor, but shall not take, in any twelve (12) month period, as part of the three (3) bird limitation, more than one (1) raptor listed as threatened in 50 C.F.R. Part 17, Subpart B, Section 17.11, and then only when approved by the U.S. Fish and Wildlife Service and the Department of Fish and Wildlife Resources.

~~5. A master falconer may replace any number of captive bred raptors a year if the possession limit at one (1) time is not exceeded.~~

6. If a permit has been issued by the department and in accordance with the Bald Eagle Protection Act and 50 C.F.R. Part 22, Subpart B, Section 22.24, a master permittee may take and possess golden eagles for falconry purposes.

7. A master permittee shall not take any species listed as endangered by 50 C.F.R. Part 17, Subpart B, Section 17.11, but may possess those species in accordance with the Endangered Species Act and implementing regulations.

~~(2) Sponsors.~~

~~(a) A sponsor shall hold a master or general falconry permit.~~

~~(b) A sponsor shall not have more than three (3) apprentices at any one (1) time.~~

~~(c) A sponsor withdrawing sponsorship shall notify the department in writing giving reasons for withdrawal and shall notify the apprentice.~~

~~(d) If the apprentice does not have a new sponsor within thirty (30) days from the date of notification of withdrawal, his or her permit shall be deemed cancelled and the birds relocated.~~

~~(3) Application, processing and issuance.~~

(a) In order to obtain any class of joint state/federal falconry permit, an applicant shall complete the standard falconry permit application form (KYF-1), incorporated by reference in Section 12 of this administrative regulation, as designated by the Department of Fish and Wildlife Resources and approved by the U.S. Fish and Wildlife Service.

~~(b) Accompanying the completed application shall be two (2) checks:~~

~~1. One (1) payable to the Department of Fish and Wildlife Re-sources in the amount specified for a falconry permit in 301 KAR 3:022; and~~

~~2. One (1) payable to the U.S. Fish and Wildlife Service in the amount specified in 50 C.F.R. Part 13, Subpart B, Section 13.11.~~

(c) Also accompanying the application shall be an inventory of raptors which the applicant possesses at the time of application as specified in Section 6(1) of this administrative regulation and 50 C.F.R. Part 21, Subpart C, Section 21.28.

(d) Upon receipt of a completed application, inventory and fees, the application shall be forwarded to the appropriate state conservation officer who shall administer the required examination and inspect equipment and facilities.

(e)1. If the equipment and facilities are found to be adequate and the applicant passes the examination as specified in subsection (4) of this section, the state conservation officer shall certify that by affixing his signature on a letter of recommendation, and the Department of Fish and Wildlife Resources shall forward the application, certification, appropriate fee and test score to the U.S. Fish and Wildlife Service.

~~2. The U.S. Fish and Wildlife Service may then issue the permit according to the applicable terms and conditions of 50 C.F.R. Parts 13, 21, or 22.~~

~~(4) Examination required. 3~~

~~(a) An applicant for any class of falconry permit shall take an appropriate written examination and score no less than eighty (80) percent.~~

~~(b) The test shall be approved in accordance with 50 C.F.R. Subpart C, Part 21.29(f) and shall be administered and supervised by the Department of Fish and Wildlife Resources at a designated site.~~

~~(5) Duration of permits. A permit shall be valid for a period of three (3) years from date of issuance.~~

~~(6) Fees. Falconry permit fees are as listed in 301 KAR 3:022.~~

~~Section 5. Facilities and Equipment. (1) Facilities and equipment shall meet the minimum standards described in 50 C.F.R. Part 21, Subpart C, Section 21.29.~~

(2) Facilities, equipment and raptors shall be made available at all times for inspection by authorized personnel of the Department of Fish and Wildlife Resources and the U.S. Fish and Wildlife Service.

Section 6. Marking. Any peregrine falcon (Falco peregrinus), gyrfalcons (Falco rusticolus) and Harris hawks (Parabuteo unicinctus) shall be banded with markers supplied by the U.S. Fish and Wildlife Service at all times according to provisions of 50 C.F.R. Part 21, Subpart C, Section 21.29.

~~Section 7. License Requirements and Conditions for Taking Raptors From the Wild. (1) License requirements.~~

~~(a) A holder of a Kentucky falconry permit shall have in his or her possession a valid annual Kentucky hunting license before taking any raptor from the wild.~~

(b) Before taking a raptor from the wild, a nonresident shall have a Kentucky nonresident annual hunting license and joint state/federal permit or individual state and federal falconry permits from his or her home state and a special permit from the Department of Fish and Wildlife Resources.

(c) Application for a special permit shall be made by writing the Department of Fish and Wildlife Resources, #1 Sportsman's Lane, Frankfort, Kentucky 40601, at least fifteen (15) days in advance of the date on which the permit is desired, and describing the nature of the request, the applicant's name, address, and the status and number of the federal/state falconry permit.

~~(2) Conditions for taking raptors from the wild.~~

~~(a) Eyas.~~

~~1. A young bird not yet capable of flight (eyas) may be taken only by a general or master falconer and only during the period May 12 through July 14.~~

~~2. No more than two (2) eyases shall be taken from the wild by the same permittee during this period.~~

~~3. At least one (1) young shall be left in any nest from which raptors are taken.~~

~~(b) Passage birds. A first year (passage) bird may be taken only during the period September 7 through December 31.~~

~~(c) Retrapping. A raptor may be retrapped only in accordance with 50 C.F.R. Part 21, Subpart C, Section 21.29.~~

~~(d) Mature birds.~~

1. Only the American kestrel and the great horned owl may be taken when over one (1) year old, except that any legal hunting raptor taken under a depredation or special purpose permit may be used for falconry by general and master falconers.

~~2. A trap or other device for taking raptors alive shall be tagged with the owners' name and address.~~

(e) A raptor taken from the wild shall be reported to the U.S. Fish and Wildlife Service as required in 50 C.F.R. Part 21, Subpart C, Sections 21.28, 21.29 and 21.30 with a copy of the report being sent to the Department of Fish and Wildlife Resources at the same time.

Section 8. Raptors Acquired Before 1977. (1)(a) A person possessing a raptor legally acquired before January 1, 1977, and who fails to meet the permit requirements, shall be allowed to retain the raptor with a nonhunting raptor permit.

~~(b) These raptors shall not be replaced nor used for hunting.~~

~~(c) Facilities and equipment for holding them shall meet the standards in Section 5 of this administrative regulation.~~

(2) A falconry permittee legally possessing raptors acquired before January 1, 1977, in excess of the number allowed under his class permit, shall be allowed to retain and hunt the extra raptors. Replacement of those raptors shall not occur, nor shall an additional nonexotic raptor be obtained, until the number in possession is at least one (1) less than the total number authorized by the class of permit held by the permittee.

Section 9. Importation, Trading or Transferring, Purchasing, Bartering or Selling, Temporary Care and Feathers of Raptors. (1) Importation. A holder of a valid falconry permit may transport any legally held raptor into or within the state of Kentucky without a transportation permit from the Department of Fish and Wildlife Resources as required in 301 KAR 2:081 and 2:082.

~~(2) Trading or transferring.~~

~~(a) Any class falconry permittee may trade or transfer a raptor to another permittee if the transaction occurs entirely within the state of Kentucky and no money or other consideration is involved.~~

(b) A permittee may trade or transfer a raptor to another permittee in an interstate transaction if the prior written approval of all states involved is obtained and no money or other consideration is involved in the transaction, except as allowed in 50 C.F.R. Part 21, Subpart C, Section 21.28(d)(8).

(c) This transaction shall be reported to the U.S. Fish and Wildlife Service as required in 50 C.F.R. Part 21, Subpart C, Sections 21.28 and 21.30 with a copy of the report being sent to the Department of Fish and Wildlife Resources at the same time.

(3) Purchasing, bartering or selling. General and master class permittees may purchase, barter or sell any lawfully possessed raptor which is bred in captivity under authority of a raptor propagation permit issued pursuant to 50 C.F.R. Part 21, Subpart C, Sections 21.28 and 21.30, subject to the following conditions:

~~(a) Any permittee who buys from, sells to or barters with any person in the United States or a foreign country shall meet the conditions specified in 50 C.F.R. Part 21, Subpart C, Section 21.30(d)(5);~~

(b) A raptor propagation permittee who sells or barters raptors shall have a commercial captive wildlife permit issued by the Department of Fish and Wildlife Resources according to provisions of 301 KAR 2:081;

(c) All transactions shall be reported to the U.S. Fish and Wildlife Service as required in 50 C.F.R. Part 21, Subpart C, Sections 21.28 and 21.30 with a copy of the report being sent to the Department of Fish and Wildlife Resources at the same time.

(4) Temporary relocation of raptors. A raptor may be temporarily held for a permittee only by an individual who is authorized to possess raptors, and subject to all other conditions in 50 C.F.R. Part 21, Subpart C, Section 21.29(j)(4).

~~(5) Feathers. Molted feathers or feathers from birds that die in captivity, may be retained and exchanged by permittees only for imping purposes.~~

~~Section 10. Release of Raptors. (1) A person shall not intentionally release to the wild any species not native to Kentucky without first obtaining written permission from the commissioner.~~

~~(2) The marker from the released bird shall be removed and surrendered to the department.~~

~~(3) The marker from an intentionally released indigenous bird shall also be removed and surrendered to the department.~~

~~(4) A federal bird band shall be affixed to a captive bred raptor intentionally released to the wild.~~

~~Section 11. Raptor Propagation Requirements, Authorized Activities, Applications, Records, and Reports. (1) Raptor propagation requirements.~~

~~(a) A person shall not breed or propagate raptors without obtaining the appropriate Kentucky captive wildlife permit as required in 301 KAR 2:081.~~

~~(b) A commercial captive wildlife permit authorizes the propagation and sale of raptors.~~

~~(c) A noncommercial permit authorizes only propagation.~~

~~(d) A permittee shall comply with all requirements, including permit application, of 50 C.F.R. Part 21, Subpart C, Section 21.30.~~

~~(2) Authorized activities. All activities permitted by 50 C.F.R. Part 21, Subpart C, Section 21.30 are authorized in Kentucky except as otherwise noted in this administrative regulation.~~

(3) Applications, records, and reports. A copy of all raptor propagation applications, records, and reports required by the U.S. Fish and Wildlife Service in 50 C.F.R. Part 21, Subpart C, Section 21.30, shall be submitted to the Department of Fish and Wildlife Resources on the same dates as required by 50 C.F.R. Part 21, Subpart C, Section 21.30.

~~Section 12. Incorporation by Reference. (1) Standard falconry permit application form (KYF-1), (12/6/06) is incorporated by reference.~~

(2) This material may be inspected, copied, or obtained, subject to applicable copyright laws, at the Kentucky Department of Fish and Wildlife, #1 Sportsman's Lane, Frankfort, Kentucky 40601, Monday through Friday, 8:00 am to 4:30 pm.]

BENJY KINMAN, Deputy Commissioner

For DR. JONATHAN GASSETT, Commissioner

MARCHETA SPARROW, Secretary

APPROVED BY AGENCY: December 5, 2012

FILED WITH LRC: December 28, 2012 at 8 a.m.

CONTACT PERSON: Rose Mack, Department of Fish and Wildlife Resources, Arnold L. Mitchell Building, #1 Sportsman's Lane, Frankfort, Kentucky 40601, phone (502) 564-3400, fax (502) 564-9136, email fwpubliccomments@ky.gov.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

Contact Person: Rose Mack

(1) Provide a brief summary of:

(a) What the administrative regulation does: This administrative regulation establishes permitting, taking, possessing, and reporting requirements for people engaged in falconry and raptor propagation.

(b) The necessity of the administrative regulation: This administrative regulation is necessary to manage and conserve raptors and to provide reasonable opportunities for sport and recreation. This regulation is also necessary to comply with federal regulation requirements.

(c) How does this administrative regulation conform to the authorizing statutes: KRS 150.025(1) authorizes the department to promulgate administrative regulations establishing open seasons for the taking of wildlife, bag limits, and methods of taking wildlife, and to make these requirements apply to a limited area. KRS 150.280(1) requires the department to promulgate administrative regulations establishing procedures for propagating and holding of protected wildlife. 50 C.F.R. Parts 13, 17, 21, and 22 establish requirements for permitting, taking, possessing, and selling of raptors and endangered and threatened species.

(d) How will this administrative regulation assist in the effective administration of the statutes: By establishing guidelines on raptor propagation and falconry, this administrative regulation ensures the protection of birds of prey in compliance with 50 C.F.R. Parts 13, 17, 21, 22.

(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

(a) How the amendment will change the existing administrative regulation: The state will now solely oversee the permitting of individuals wishing to propagate raptors or practice falconry.

(b) The necessity of the amendment to this administrative regulation: The U.S. Fish and Wildlife Service is requiring all states to assume the responsibility for oversight of raptor propagation and falconry.

(d) How the amendment will assist in the effective administration of the statutes: See "D" above.

(3) List the type and number of individuals, businesses, organizations or state and local governments that will be affected: This regulation will affect falconers and captive wildlife permittees who hold raptors in Kentucky as well as nonresidents wising to obtain a raptor within the state for falconry. There are approximately 57 falconry permittees and about 10 captive wildlife permittees in Kentucky. The number of nonresidents wishing to obtain a raptor varies from year to year but generally stays under 20 per year.

(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new of by the change, if it is an amendment, including:

(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Individuals seeking renewal will submit a completed application, remit the appropriate fee, and provide a completed, signed copy of the raptor facility and equipment inspection form. Those individuals seeking to obtain a falconry permit for the first time will be required to take an exam and receive a passing mark (minimum score 80 per cent), along with submitting their appli-cation, raptor facility and equipment inspection form, fee and supporting materials. Nonresidents wishing to obtain a raptor will need a valid Kentucky nonresident hunting license, a valid falconry permit or equivalent from their home state, and an approved nonresident raptor take form from the Department. Note, these criteria are the same as the existing regulation, however the state will administer the exam rather than the USFWS.

(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): A Kentucky falconry permit costs $75, but this amendment will not require or create any new costs.

(c) As a result of compliance, what benefits will accrue to the entities identified in question (3): Individuals will have less waiting time since there will only be a State permit issued and historically the federal permit could take extended periods of time to obtain. Also, individuals will now only have to submit one fee. This will streamline the process for the user.

(5) Provide an estimate of how much it will cost to implement this administrative regulation:

(a) Initially: Department costs to administer this administrative regulation will be offset by the permit fee.

(b) On a continuing basis: There will be no additional cost to the agency to implement this administrative regulation on a continuing basis.

(6) What is the source of funding to be used for implementation and enforcement of this administrative regulation? The source of funding is the State Game and Fish Fund.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment. No increase in fees or funding will be necessary to implement this administrative regulation.

(8) State whether or not this administrative regulation establishes any fees directly or indirectly increases any fees: This administrative regulation does not establish any fees directly or indirectly.

(9) TIERING: Is tiering applied? Tiering was not used because this administrative regulation applies equally to all falconers and raptor propagators.

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

(1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Department of Fish and Wildlife Resources’ Divisions of Wildlife and Law Enforcement will be impacted by this administrative regulation.

(2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 150.025(1) authorizes the department to promulgate administrative regulations establishing open seasons for the taking of wildlife, bag limits, and methods of taking wildlife, and to make these requirements apply to a limited area. KRS 150.280(1) requires the department to promulgate administrative regulations establishing procedures for propagating and holding of protected wildlife. 50 C.F.R. Parts 13, 17, 21, and 22 establish requirements for permitting, taking, possessing, and selling of raptors and endangered and threatened species.

(3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? The permit fee will generate approximately $5,000 for the department for the first year.

(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? The permit fee will generate approximately $5,000 for the department for subsequent years.

(c) How much will it cost to administer this program for the first year? The cost to administer the program will be offset by permit revenue during the first year.

(d) How much will it cost to administer this program for subsequent years? The cost to administer the program will be offset by permit revenue in subsequent years.

Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

Revenues (+/-):

Expenditures (+/-):

Other Explanation:

FEDERAL MANDATE ANALYSIS COMPARISON

1. Federal statute or regulation constituting the federal mandate. Wildlife and Fisheries, Federal Code of Regulations, 50 C.F.R. Parts 21 and 22.

2. State compliance standards. The Department of Fish and Wildlife Resources is now required to set falconry requirements and seasons which are within the frameworks established by the U.S. Fish and Wildlife Service and published in 50 C.F.R. Parts 21 and 22.

3. Minimum or uniform standards contained in the federal mandate. 50 C.F.R. Parts 21 and 22 contain minimum federal standards governing falconry, including falconry possession limits, permit requirements, facilities and care standards, and reporting requirements.

4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? Yes.

5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. The federal mandate defines the species and possession limits falconers are allowed for falconry purposes. States are permitted to be more restrictive, but not more liberal in their respective regulations. Kentucky will be more restrictive in the possession limits of certain raptor species that are of conservation concern in the state.