Emergency Adoptions

TITLE 35. Oklahoma Department of Agriculture, Food, and Forestry

CHAPTER 48. Wildlife Services

[OAR Docket #13-1280]

RULEMAKING ACTION:

EMERGENCY adoption

RULES:

Subchapter 3. Aerial Hunting

35:48-3-1. Definitions [REVOKED]

35:48-3-2. Permit required [REVOKED]

35:48-3-3. Application requirements [REVOKED]

35:48-3-4. Reporting requirements [REVOKED]

35:48-3-5. Indigenous species [REVOKED]

35:48-3-6. Purpose [NEW]

35:48-3-7. Definitions [NEW]

35:48-3-8. Permit required [NEW]

35:48-3-9. Application requirements [NEW]

35:48-3-10. Permit issuance [NEW]

35:48-3-11. Fees and charges [NEW]

35:48-3-12. Twenty-four hour notice [NEW]

35:48-3-13. Quarterly reports [NEW]

35:48-3-14. Prohibited activities [NEW]

35:48-3-15. Complaints [NEW]

35:48-3-16. Inspections [NEW]

35:48-3-17. Grounds for denial, suspension, or revocation of a license [NEW]

35:48-3-18. Sanctions for misconduct [NEW]

35:48-3-19. Pilot and aircraft requirements [NEW]

AUTHORITY:

Oklahoma Constitution, Article 6, Section 31; 2 O.S. Section 2-4; 29 O.S. Section 4-107.2; and SB 919, approved by the Governor on May 13, 2013.

DATES:

Adoption:

October 1, 2013.

Approved by Governor:

October 29, 2013

Effective:

November 1, 2013 or immediately upon Governor's approval if approved by the Governor after November 1, 2013.

Expiration:

Effective through September 14, 2014, unless superseded by another rule or disapproved by the Legislature.

SUPERSEDED EMERGENCY ACTIONS:

N/A

INCORPORATIONS BY REFERENCE:

N/A

FINDING OF EMERGENCY:

Senate Bill 919 directs the State Board of Agriculture to administer and enforce the provisions of 29 O.S. Section 4-107.2 which relates to the management of depredating animals by use of aircraft beginning November 1, 2013. The State Board of Agriculture has previously regulated management of depredating animals by use of aircraft but significant changes to the governing law require modification of applicable rules by the Department. Administrative adopted rules through a regular permanent rulemaking would not become effective until July 1, 2014 or later. As prescribed by the Administrative Procedures Act, the State Board of Agriculture finds that an emergency exists and that an emergency rulemaking is necessary to administer and enforce the provisions of 29 O.S. Section 4-107.2 beginning November 1, 2013. The Administrative Procedures Act permits an agency to adopt emergency rules to "comply with deadlines in amendments to an agency's governing law ... " and to "avoid violation of ... state law". 75 O.S. Section 253(A)(1)(b) and (c).

ANALYSIS:

The purpose of the proposed emergency rules is to implement the provisions of Senate Bill 919 that direct the State Board of Agriculture to regulate the management of depredating animals by use of aircraft. These rules are necessary to allow the Department to comply with deadlines in SB 919 that require the Board's to implement SB 919 beginning November 1, 2013. Emergency rules are necessary to avoid violation of state law. These rules contain provisions related to licensing requirements, application contents, inspections, fees for licenses, annual reports, renewals, complaints, recordkeeping, and operations of permit holders authorized to engage in the management of depredating animals by use of aircraft. All fees and charges contained within the proposed rules are prescribed by SB 919.

CONTACT PERSON:

Bennett Abbott, (405) 522-5803, bennett.abbott@ag.ok.gov

PURSUANT TO THE ACTIONS DESCRIBED HEREIN, THE FOLLOWING EMERGENCY RULES ARE CONSIDERED PROMULGATED AND EFFECTIVE UPON APPROVAL BY THE GOVERNOR A SET FORTH IN 75 O.S., SECTION 253(D):

SUBCHAPTER 3. Aerial Hunting

35:48-3-1. Definitions [REVOKED]

The following terms as used in this subchapter shall mean:

(1) "Depredating animal" means feral hogs, coyotes, and crossbreeds between coyotes and dogs;

(2) "Management of depredating animals" means to manage by counting, photographing, relocating, capturing, or hunting by the use of aircraft; and

(3) "Aircraft" means non-fixed wing rotary aircraft only, so that lifting surfaces rotate on a vertical axis to generate lift and does not have a rear propeller that generates forward thrust. All aircraft shall be registered with the Federal Aviation Administration and shall be rated at a minimum of 200 horsepower with dual controls removed.

35:48-3-2. Permit required [REVOKED]

(a) The Oklahoma Department of Agriculture, Food, and Forestry is may issue an aerial hunting permit to any person who holds a big game commercial hunting area license issued pursuant to Section 4-106 of Title 29 of the Oklahoma Statutes to engage in the management of depredating animals by use of aircraft only on land listed in the commercial hunting area license.

(b) The aerial hunting permit may be issued without limitation by statewide season regulations or bag limits.

(c) The aerial hunting permit shall be carried in the aircraft when performing management of depredating animals by the use of aircraft.

35:48-3-3. Application requirements [REVOKED]

(a) Applications for an aerial hunting permit shall be submitted to the Department.

(b) The Department may issue an aerial hunting permit if it finds that it will aid in the management of depredating animals.

(c) The Department may deny an aerial hunting permit if it finds that it will have a deleterious effect on indigenous species.

(d) The aerial hunting permit shall include, but is not limited to, the following information:

(1) The name and address of each authorized person;

(2) A description of the animals and number of animals authorized to be taken;

(3) A description of the area from which the animals are authorized to be taken; and

(4) The issue date and expiration date of the aerial hunting permit.

(e) An aerial hunting permit to manage depredating animals issued pursuant to this section shall be valid for a period of one (1) year from the date of issuance.

(f) An aerial hunting permit shall not be bartered or transferred to any other person.

(g) Aerial hunting permits may be renewed by filing an application for renewal with the Department at least thirty (30) days prior to the expiration date.

(h) The permittee shall carry a minimum of $300,000 in liability insurance and shall provide proof of liability insurance at the time of application and renewal.

(i) The only firearm designated for aerial hunting is a shotgun firing pellet ammunition.

(j) Aerial hunting shall occur during daylight hours only.

35:48-3-4. Reporting requirements [REVOKED]

(a) The pilot of an aircraft used for the management of depredating animals shall:

(1) Maintain a daily flight log and report.

(2) Make the daily flight log current and available for inspection by authorized agents of the Oklahoma Department of Agriculture, Food, and Forestry employees at reasonable times.

(3) Comply with all Federal Aviation Administration (FAA) regulations for the specific type of aircraft.

(4) Hold a current pilot's certificate from the FAA.

(5) Maintain a minimum current FAA class II medical.

(6) Complete a minimum of 250 hours low level time for the aircraft type.

(b) The permit application and any required reporting may be transmitted to the Department by email with supporting written documentation.

(c) Copies of the required flight log and report shall be sent to the Department within thirty (30) days of flight activity.

(d) A permit holder shall notify the Department in writing of the date, time, and area where management of depredating animals by use of an aircraft will occur no less than twenty-four (24) hours prior to the flight.

(e) The holder of a permit to manage depredating animals shall, within thirty (30) days following the end of a calendar quarter or upon termination of a permit, file with the Department a report showing:

(1) The name, address, and permit number of the permit holder;

(2) The name and address of the pilot and any other person participating in the flights;

(3) The number and description of the depredating animals managed under the permit;

(4) The types of depredating animals authorized to be managed under the permit;

(5) Dates and times of authorized flights; and

(6) Any other information requested by the Department.

35:48-3-5. Indigenous species [REVOKED]

The Commissioner of Agriculture shall appoint a Department representative to meet annually with representatives designated by the Director of the Oklahoma Department of Wildlife Conservation to determine if private aircraft activities have a "deleterious effect on indigenous species."

35:48-3-6. Purpose

These rules establish regulation and permitting requirements for aerial hunting for the management of depredating animals in Oklahoma pursuant to 29 O.S. Section 4-107.2. The Oklahoma Department of Agriculture, Food, and Forestry shall administer the provisions of 29 O.S. Section 4-107.2 in accordance with the Oklahoma Agricultural Code, 2 O.S. Sections 1-1 et seq., the Oklahoma Administrative Procedures Act, 75 O.S. Sections 250 et seq., and the procedural rules promulgated by the State Board of Agriculture found in Title 35 of the Oklahoma Administrative Code.

35:48-3-7. Definitions

The following words or terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise:

"Aerial hunting" means the killing or taking of an animal from an aerial vehicle.

"Aircraft" means non-experimental manned fixed wing and non-fixed wing aircraft registered with the Federal Aviation Administration (FAA), suitable for safe aerial hunting operations, with dual controls removed.

"Department" means the Oklahoma Department of Agriculture, Food, and Forestry.

"Depredating animal" means feral hogs, coyotes, and crossbreeds between coyotes and dogs.

"Management by use of aircraft" means to manage depredating animals by counting, photographing, relocating, capturing, or hunting by the use of aircraft.

35:48-3-8. Permit required

(a) No person shall engage in management by use of aircraft without obtaining an aerial hunting permit issued by the Department.

(b) The aerial hunting permit shall be carried in the aircraft when performing management by the use of aircraft.

35:48-3-9. Application requirements

(a) Applications for an aerial hunting permit shall be submitted to the Department using the form prescribed by the Department.

(b) A person seeking an aerial hunting permit shall submit an application containing the following information:

(1) The name of the person seeking an aerial hunting permit;

(2) The address, telephone number, and other relevant contact information for the person seeking an aerial hunting permit;

(3) If the person seeking the aerial permit is a corporation or other legal entity, the address of the entity's registered service agent;

(4) The address, telephone number, and other relevant contact information for the pilot of the aircraft used for management by the use of aircraft;

(5) The address, telephone number, and other relevant contact information for the person or persons authorized to use a firearm on the aircraft;

(6) The address, telephone number, and other relevant contact information for the landowner for the area from which animals will be taken;

(7) A description of the animals and number of animals to be taken;

(8) A description of the area from which the animals will be taken;

(9) Proof of ownership or proof of the landowner's or lessee's permission to conduct aerial hunting on the area from which the animals will be taken;

(10) A description of the aircraft that will be used for management by the use of aircraft;

(11) If applicable, a description of the firearm and ammunition that will be used for management by the use of aircraft; and

(12) Proof of liability insurance with a minimum coverage of $300,000.

(c) A permit holder shall be required to advise the Department of any changes in information submitted with the application no less than twenty-four (24) hours prior to engaging in management by the use of aircraft.

(d) If the applicant submits an incomplete application or the Department requests additional information, the Department shall notify the applicant that the application is incomplete and identify the information on the application that is incomplete or needs additional information. The applicant may submit additional information within twenty (20) working days to supplement and complete the application. If the applicant does not respond to the request for additional information in a timely manner, the application shall be denied.

(e) The applicant may withdraw its application from consideration at any time.

(f) An applicant whose application is denied due to insufficient information provided by the applicant or the withdrawal of the application may submit a new application. Any fees and charges paid by the applicant in connection with the denied or withdrawn application shall not be applied to the processing of a new application.

(g) Aerial hunting permits may be renewed by filing an application for renewal with the Department at least thirty (30) days prior to the expiration date.

(h) Applications and renewals for aerial hunting permits shall be accompanied by the payment of any required fee.

35:48-3-10. Permit issuance

(a) The Department may issue an aerial hunting permit if it finds that it will aid in the management of depredating animals.

(b) The Department may deny an aerial hunting permit if it finds that it will have a deleterious effect on indigenous species.

(c) The Department may issue an aerial hunting permit to any person to engage in the management by use of aircraft without limitation by statewide season regulations or bag limits.

(d) The Department may place reasonable restrictions on the permit holder, including limitations on the type of aircraft, firearm, and ammunition used for aerial hunting or the management by use of aircraft, the number of animals to be taken, and such other limitations necessary for safety and for the effect on indigenous species.

(e) The aerial hunting permit shall include, but is not limited to, the following information:

(1) The name and address of the pilot authorized to operate the aircraft under the permit;

(2) The name and address of the person authorized to use firearms on the aircraft or otherwise engage in the management by use of aircraft;

(3) A description of the animals and number of animals authorized to be taken;

(4) A description of the area from which the animals are authorized to be taken;

(5) The issue and expiration date of the aerial hunting permit; and

(6) Any limitations placed on the permit holder by the Department.

(f) An aerial hunting permit to manage depredating animals issued pursuant to this section shall be valid for a period of one (1) year from the date of issuance.

(g) An aerial hunting permit shall not be bartered or transferred to any other person.

35:48-3-11. Fees and charges

(a) The Department shall charge the following nonrefundable aerial hunting permit fees:

(1) Fee for an initial application: $200.00; and

(2) Fee for a renewal application: $200.00.

35:48-3-12. Twenty-four hour notice

(a) A permit holder shall notify the Department of the date, time, and area on which the management by use of aircraft will occur not less than twenty-four (24) hours prior to the activity.

(b) Twenty-four (24) hour notification shall be made by telephone, fax, or electronic means.

(c) Twenty-four (24) hour notification shall include a confirmation by the permit holder that all the information contained in the aerial hunting permit application is current and correct or shall provide new information and documentation if necessary.

(d) Twenty-four hour notification shall include the name and address of the pilot authorized to operate the aircraft under the permit and the name and address of the person authorized to use firearms on the aircraft or otherwise engage in the management by use of aircraft;

35:48-3-13. Quarterly reports

A permit holder shall file a quarterly report with the Department within thirty (30) days of each calendar quarter or on the termination of the permit, whichever occurs first, that includes the following information:

(1) The name, address, and permit number of the permit holder;

(2) The name and address of the pilot and any other person participating in the flights;

(3) The number and description of the depredating animals managed under the permit;

(4) The types of depredating animals authorized to be managed under the permit;

(5) Dates and times of authorized flights; and

(6) Any other information required by the Department.

35:48-3-14. Prohibited activities

A permit holder or pilot shall not:

(1) Hunt, shoot, shoot at, kill, or attempt to kill any wildlife, domesticated animal, or livestock from an aircraft other than the animals authorized by the aerial hunting permit;

(2) Intentionally disturb, haze, or buzz any wildlife, domesticated animal, or livestock from an aircraft other than the animals authorized by the aerial hunting permit;

(3) Take or attempt to take any depredating animal for any purpose other than is necessary for the protection of land, water, wildlife, livestock, domesticated animals, human life, or crops;

(4) Manage depredating animals from an unsuitable aircraft;

(5) Manage depredating animals from an unmanned aerial vehicle;

(6) Manage depredating animals with a firearm other than a shotgun using pellet ammunition;

(7) Manage depredating animals during hazardous weather, low visibility or nighttime hours;

(8) Manage depredating animals during designated deer hunting seasons from the dates of October 1 through January 15 without first obtaining a special permit from the local game warden or other authorized employee of the Department of Wildlife Conservation; or

(9) Herd animals from one property to another without the permission of all landowners or lessees affected.

35:48-3-15. Complaints

(a) On receipt of a valid written complaint alleging a violation of the statutes or rules relating to the management of depredating animals by use of aircraft, an authorized agent of the Department, a local law enforcement authority, or an inspector designated by the Department may investigate the alleged violation.

(b) Any person may submit a written and signed complaint to the Department alleging a violation of the statutes or rules relating to the management of depredating animals by use of aircraft.

(c) The resolution of a complaint is the completion of the appropriate administrative, jurisdictional, and legal remedies appropriate to the circumstances.

35:48-3-16. Inspections

The Department may inspect any daily flight logs and other relevant books and records of the permit holder or pilot engaged in management by use of aircraft.

35:48-3-17. Grounds for denial, suspension, or revocation of a license

The Department may deny, suspend, cancel, revoke, or refuse reissuance of a license of any applicant or permit who:

(1) Violates statutes or rules relating to the management of depredating animals by use of aircraft;

(2) Engages in fraud or deceit in obtaining or renewing a permit;

(3) Engages in management by use of aircraft in this state without a valid permit;

(4) Aids or abets another person in engaging in management by use of aircraft without a valid permit;

35:48-3-18. Sanctions for misconduct

If the Department determines that a permit holder has violated the statutes relating to the management of depredating animals by use of aircraft, Department rules, or other applicable legal authorities, the Department may

(1) Refer the matter to the appropriate law enforcement authority for criminal prosecution; and/or

(2) Deny, suspend, cancel, revoke, or refuse reissuance of a permit after an administrative hearing conducted in a manner consistent with OAC 35:1-9-1 et seq.

(3) Assess an administrative penalty of not more than Ten Thousand Dollars ($10,000) per day of noncompliance; and

(4) Bring an action for injunctive relief in District Court.

35:48-3-19. Pilot and aircraft requirements

(a) Pilots shall possess a commercial license from the FAA.

(b) Pilots shall possess a Class II medical certificate.

(c) Pilots shall have documented experience of no less than 250 low-level flying hours in an agricultural environment or some equivalent.

(d) Only passengers on an aircraft shall be permitted to use firearms.

(e) Suitable aircraft eligible for aerial hunting activities shall be registered with the Federal Aviation Administration, and shall be:

(1) powered rotor aircraft, or

(2) a fixed, high wing aircraft with tandem seating with a rated stall speed of 50 mph or less.

[OAR Docket #13-1280; filed 11-8-13]