Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

Chapter 65. WILDLIFE

Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

3. SEASONS AND BAG LIMITS--FISHING PROVISIONS

31 TAC §65.79

The Texas Parks and Wildlife Department proposes new §65.79, concerning gear restrictions for minnow traps. The new section is necessary to address public comment received by the Texas Parks and Wildlife Commission concerning identification of trap-type fishing mechanisms generally. The proposed new rule would impose restrictions on minnow traps similar to those currently in effect for crab traps and perch traps, namely that each trap would have to be equipped with a gear tag bearing the name of the person who set out the trap and the date the trap was set out. Research has shown that abandoned or lost traps can continue to function for years, leading to waste and loss of marine organisms. By requiring the gear tag, the department can consider the trap to have been abandoned if the date on the gear indicates the trap has been in the water longer than 30 days. At that point the trap can be removed by department personnel as an abandoned trap.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rule is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect, the public benefit expected as a result of the proposed rule will be consistency of the agency’s regulations governing gear restrictions on various types of traps, which will make compliance with the rules easier and less confusing for the public, and the prevention of waste of marine organisms by abandoned traps.

There will be economic costs for persons required to comply with the rule as proposed. The rule will require each minnow trap to be equipped with a gear tag. In each case the cost of compliance per device is less than $1 per trap. There are no other economic costs for persons required to comply with the rule as proposed.

The department has determined that the rule will not affect local economies; accordingly, no local employment impact statement has been prepared.

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

The department has determined that the rule will not have an adverse economic effect on small or micro-businesses.

The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rule.

Comments on the proposed rule may be submitted to Jerry Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4492; e-mail: jerry.cooke@tpwd.state.tx.us.

The new rule is proposed under the authority of Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life

The proposed new rule affects Parks and Wildlife Code, Chapter 61.

§65.79.Minnow Trap Restrictions.

It is unlawful to use a minnow trap in saltwater that is not equipped with a gear tag. A gear tag is valid for 30 days after the date it is set out.

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

Filed with the Office of the Secretary of State on April 12, 2004.

TRD-200402433

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 23, 2004

For further information, please call: (512) 389-4775

31 TAC §§65.263 - 65.265, 65.270

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

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

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

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

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

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

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

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be the use of a public resource by means of the regulated trapping, possession, and use of raptors for falconry purposes.

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

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

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

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

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

The amendments are proposed under the authority of Parks and Wildlife Code, §49.014, which authorizes the department to prescribe rules for the taking, capture, possession, propagation, transportation, export, import, and sale of raptors, time and area from which raptors may be taken or captured, and species that may be taken or captured; to provide standards for possessing and housing raptors held under a permit; to prescribe annual reporting requirements and procedures; to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; and to require and regulate the identification of raptors held by permit holders.

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

§65.263.General Provisions.

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

(b) Public display of raptors shall be:

(1) for educational display purposes only; and

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

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

§65.264.Applications and Permits.

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

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

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

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

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

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

§65.265.Permit Classes: Qualifications and Restrictions.

A person who is not a resident of this state may not hold any permit issued under this subchapter other than a nonresident trapping permit.

(1) Apprentice class permittees . [ : ]

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

(i) be at least 14 years of age;

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

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

(B) [ (A) ] Restrictions. An apprentice class permittee:

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

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

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

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

(2) General class permittees . [ : ]

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

(i) be at least 18 years of age; and

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

(B) Restrictions. A general class permittee:

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

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

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

(3) Master class permittees . [ : ]

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

(B) Restrictions. A master class permittee:

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

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

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

(4) Raptor propagator:

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

(i) be a resident of Texas;

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

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

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

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

(5) Nonresident trapping permittees:

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

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

§65.270.Marking.

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

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

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

Filed with the Office of the Secretary of State on April 12, 2004.

TRD-200402434

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 23, 2004

For further information, please call: (512) 389-4775

31 TAC §§65.372, 65.375, 65.377, 65.379

The Texas Parks and Wildlife Department proposes amendments to §§65.372, 65.375, 65.377, and 65.379, concerning the Statewide Fur-Bearing Animal Proclamation. In general, the changes represent an effort to simplify and clarify the regulations governing fur-bearing animals.

The proposed amendment to §65.372, concerning Definitions, eliminates the definitions for ‘commercial harvest’, ‘finished product,’ ‘fur-bearing animal,’ and ‘recreational harvest.’ The definitions for commercial and recreational harvest are redundant. The commercial and recreational seasons are established in §65.375, and the activities permitted under the various licenses are prescribed in statute and regulations; therefore, the definitions are unnecessary and are being removed. The definition of ‘fur-bearing animal’ is being removed for essentially the same reason. The term is defined in Parks and Wildlife Code, Chapter 71, and need not be reproduced in rule.

The proposed amendment to §65.375, concerning Open Season; Means and Methods, consists of several actions. First, the proposed amendment would eliminate the bag and possession limits for fur-bearing animals taken under a hunting license. Under current rules, there is no bag or possession limit for fur-bearing animals taken under a trapper’s license during the trapping season and persons hunting under a hunting license may take one fur-bearing animal per day, with a possession limit of two. However, because depredating fur-bearing animals may be taken in any number at any time, the department believes it is unnecessary to impose bag and possession limits on persons hunting under a hunting license, since no other class of permittee is thusly restricted. The amendment would also eliminate subsection (a)(3), which prohibits the sale of fur-bearing animals taken during the recreational season (i.e., under a hunting license), which is prohibited by statute, making the regulatory prohibition redundant and therefore unnecessary. The proposed amendment also would eliminate subsection (b)(3), which prohibits a trapper from possessing more than two undried pelts between April 6 and October 31. This provision is being removed because rule action in 2003 provided for year-round possession of pelts by trappers, allowing trappers to maximize economic return by retaining pelts for as long as needed to take advantage of favorable market fluctuations. Subsection (b)(3) conflicts with that action, and is being removed for that reason. The proposed amendment also removes the prohibition on the take of river otter by firearms. Staff review of the provision reveals that it has been effect since at least 1981, but there is no historical data to explain the original reason. Firearms are lawful for taking every other species of fur-bearing animal, and currently there is no biological reason to limit the means of take for river otter. The proposed amendment also would eliminate subsection (c)(1), which enumerates the legal means and methods for the take of fur-bearing animals. The paragraph is unnecessary because current paragraph (2) sets forth the means and methods that are unlawful and there is no need to set forth the same thing in two different ways. The remaining provisions are redesignated accordingly and have been grammatically altered to maintain parallel construction. Finally, the proposed amendment would replace the term ‘steel leghold’ with ‘foothold.’ The term ‘steel leghold’ inaccurately describes these types of traps, and the International Association of Fish and Wildlife Agencies has adopted new terminology to refer to these types of traps as ‘foothold’ traps.

The amendment to §65.377, concerning Sale or Purchase of Fur-bearing Animals, changes subsections (a)(4) and (b)(3) by adding the word ‘commercial’ to those provisions. The department’s intent is to prevent any misconception that trappers may retain fur-bearing animals taken outside of the commercial season or that wholesale fur dealers may purchase animals or pelts taken outside of the commercial season. The amendment also adds language to subsection (a)(5) to allow trappers to sell fur-bearing animals to buyers located outside the state in addition to wholesale fur dealers licensed by the state. Many trappers find the need to get pelts quickly to sales houses when prices are good; however, due to the small number of fur buyers in Texas, this is sometimes problematic in terms of time. The department would like to empower trappers to act quickly when prices are good.

The amendment to §65.379, concerning Reporting Requirements, adds a provision requiring trappers who sell animals or pelts directly to out-of-state purchasers to report those sales to the department on an annual basis. Under current rule, only wholesale fur dealers may purchase and resell a fur-bearing animal, and the department requires annual reports from wholesale dealers in order to track the volume of fur-bearing animals taken in the state for commercial trade, which is also used as an indirect index of furbearer populations. The amendment to §65.377 would allow trappers to sell directly to out-of-state buyers; thus, that data would not be captured by wholesale dealer reports. By requiring an annual report from trappers who sell animals directly to out-of-state buyers, the department will continue to capture that data.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rules are in effect, there will be no fiscal implications to state or local government.

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect, the public benefit of the proposed rules will be to simplify the regulations governing the take of fur-bearing animals.

There is no economic cost to businesses, microbusinesses, or persons required to comply with the rules as proposed.

The department has determined that the rules will not affect local economies; accordingly, no local employment impact statement has been prepared.

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

The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rules.

Comments on the proposed rule may be submitted to John Young, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 912-7047 or 1-800-792-1112, e-mail: john.young@tpwd.state.tx.us.

The rules are proposed under the authority of Parks and Wildlife Code, §71.002, which authorizes the commission to regulate the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of fur-bearing animals, pelts, and carcasses as the commission considers necessary to manage fur-bearing animals or to protect human health or property, including provisions governing permit application forms, fees, procedures, and reports, the periods of time when it is lawful to take, possess, sell, purchase, or transport fur-bearing animals, pelts, and carcasses, catch and possession limits for fur-bearing animals and pelts, and the means, methods, manner and places in which it is, lawful to take or possess fur-bearing animals, pelts, or carcasses.

The proposed rules affect Parks and Wildlife Code, Chapter 71.

§65.372.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation) or Parks and Wildlife Code, Chapter 71.

(1) Consumer--A person who purchases non-living fur-bearing animals or products made from fur-bearing animals for personal use or consumption and who does not sell, resell, trade, or barter the non-living fur-bearing animals or products made from fur-bearing animals in exchange for anything of value.

[ (2) Commercial harvest--The take of a fur-bearing animal under a trapping license during the season for commercial harvest established in §65.375 of this title (relating to Open Seasons; Means and Methods).]

(2) [ (3) ] Export--The transport of a fur-bearing animal across the boundaries of this state.

[ (4) Finished product--The tanned pelt of a fur-bearing animal or any part of a fur-bearing animal (or its resulting products) that has been treated to prevent decomposition (by means other than refrigeration or freezing) and/or packaged for sale. A dried pelt is not a finished product.]

[ (5) Fur-bearing animal--The animals listed in Parks and Wildlife Code, §71.001, living or dead, including their parts, carcasses, and pelts.]

(3) [ (6) ] Nuisance fur-bearing animal--A fur-bearing animal that is depredating or a threat to human health or safety.

[ (7) Recreational harvest--The take of a fur-bearing animal under a hunting license at any time, or under a trapper's license outside of the season for commercial harvest.]

§65.375.Open Seasons; Means and Methods.

(a) Recreational harvest.

(1) The open season for the recreational harvest of fur-bearing animals is September 1 of one year to August 31 of the following year.

(2) There are no bag or possession limits for fur-bearing animals taken during the open season for recreational harvest. [ The daily bag limit is one fur-bearing animal and the possession limit is two fur-bearing animals. A fur-bearing animal that has been reduced to a finished product shall not be considered part of the possession limit. ]

[ (3) Fur-bearing animals, pelts, and carcasses possessed under this subsection shall not be sold.]

(b) Commercial harvest.

(1) The open season for the commercial harvest of fur-bearing animals is November 1 of one year through March 31 of the following year. Nutria may be taken from September 1 through August 31 of the following year.

(2) There are no bag or possession limits.

[ (3) From April 6 through October 31 no licensed trapper may possess more than two undried pelts taken under a trapper's license.]

(c) Means and methods.

[ (1) Only the following means and methods are legal for taking fur-bearing animals:]

[ (A) firearms;]

[ (B) steel leghold and conibear-style traps;]

[ (C) falconry;]

[ (D) live or box trap;]

[ (E) dogs;]

[ (F) snare;]

[ (G) lawful archery equipment;]

[ (H) electronic or hand-held calls; and]

[ (I) artificial light.]

[ (2) ] [ Exceptions. ] No person may:

[ (A) take river otter with firearms;]

(1) [ (B) ] take fur-bearing animals with foothold [ steel leghold ] or conibear-style traps, except during the open season for commercial harvest or as provided in §65.381 of this title (relating to Nuisance Fur-bearing Animals) ;

(2) [ (C) ] set foothold [ steel leghold ] or conibear-style traps within 400 yards of any school; [ or ]

(3) [ (D) ] use smoke, explosives or chemical irritants of any kind to harry or flush fur-bearing animals ; [ . ]

[ (3) Special provisions.]

(4) [ (A) ] set a Conibear-style trap [ traps ] with a diagonal opening dimension greater than ten inches [ shall not be set ] on land or in less than six inches of water ; [ . ]

(5) [ (B) ] use snares, foothold [ Snares, steel leghold ] traps, conibear-style traps, and live or box traps unless each trap is [ shall be ] examined at least every 36 hours ; or [ . ]

(6) [ (C) ] fail to remove animals from taking devices [ Animals taken by the means and methods listed in this section shall be removed ] upon discovery.

§65.377.Sale or Purchase of Fur-bearing Animals.

(a) Sale of fur-bearing [ Fur-bearing ] animals, their carcasses and pelts, and finished products.

(1) No person other than a licensed fur-bearing animal propagator may sell a live fur-bearing animal.

(2) No person other than a licensed trapper or wholesale fur dealer may sell the carcass or pelt of a fur-bearing animal.

(3) Finished products may be sold by anyone.

(4) A trapper may possess and sell the carcass or pelt of a fur-bearing animal lawfully taken during an open commercial trapping season at any time.

(5) A trapper may sell the carcass or pelt of a fur-bearing animal only to a wholesale fur dealer or purchaser outside of Texas .

(b) Purchase of fur-bearing animals, their carcasses and pelts, and finished products.

(1) Except as provided in §65.378 (c) of this title (relating to Importation, Exportation, and Release of Fur-bearing Animals), no person other than a licensed fur-bearing animal propagator or a person holding a permit issued under Parks and Wildlife Code, Chapter 43, Subchapter C, may purchase a live fur-bearing animal.

(2) No person other than a licensed wholesale fur dealer or a consumer may purchase the carcass or pelt of a fur-bearing animal. A consumer must maintain proof of purchase until the pelt becomes a finished product or the carcass is cleaned for cooking or storage at the consumer's permanent residence.

(3) A wholesale fur dealer may purchase the carcass or pelt of a fur-bearing animal lawfully taken during an open commercial trapping season at any time.

(4) Finished products may be purchased by anyone.

(c) A person who sells fur-bearing animals prepared for immediate consumption may purchase the carcass of a fur-bearing animal only from a wholesale dealer.

§65.379.Reporting Requirements.

(a) Any person licensed as a wholesale fur dealer:

(1) must complete and file an appropriate annual report with the department by May 31 of each year;

(2) return all unused CITES tags to the department by May 31 of each year; and

(3) may not be in possession of unused CITES tags between May 31 and October 1 of any year.

(b) A person licensed as a trapper must complete and submit an annual report accounting for all sales of fur-bearing animals to purchasers outside of Texas.

(c) [ (b) ] Any person licensed as a fur-bearing animal propagator must complete and file an appropriate annual report with the department by August 31 of each year.

(d) [ (c) ] The department reserves the right to refuse permit issuance to any person not in compliance with this section.

(e) [ (d) ] All records required by this section shall be retained and kept available for inspection upon request of a department employee acting within the official scope of duty for a period of two years following the period of validity of the permit under which they are required to be kept.

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

Filed with the Office of the Secretary of State on April 12, 2004.

TRD-200402435

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 23, 2004

For further information, please call: (512) 389-4775