PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
SUBCHAPTER G. THREATENED AND ENDANGERED NONGAME SPECIES
The Texas Parks and Wildlife Commission adopts the repeal of §65.176, an amendment to §65.175, and new §65.176 and §65.177, concerning Threatened and Endangered Nongame Species. Sections 65.175 and 65.176 are adopted with changes to the proposed text as published in the December 19, 2008, issue of the Texas Register (33 TexReg 10296). The repeal of §65.176 and new §65.177 are adopted without changes and will not be republished.
The change to §65.175 corrects the spelling of the scientific name of the margay.
The change to §65.176 corrects the spelling of the scientific names of the jaguarundi and the West Indian manatee.
The repeal of §65.176, concerning Violations and Penalties, is necessary to relocate the contents of that section in new §65.177, concerning Violations and Penalties. The amendment to §65.175, concerning Threatened Species, adds the San Felipe gambusia (Gambusia clarkhubbsi) to the list of threatened species and removes the Arctic peregrine falcon (Falco peregrinus tundrius) from the same list. New §65.176, concerning Endangered Species, would incorporate by rule the list of species indigenous to Texas that are listed by the federal government as endangered. New §65.177, concerning Violations and Penalties, contains the provisions of current §65.176, which has been repealed in order to create a place for new §65.176.
Under current rule, a species of fish and wildlife is designated as threatened if the department has determined that it is "likely to become endangered in the future." The department establishes this status by rule under authority of Parks and Wildlife Code, Chapter 67, which authorizes regulations to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that department consider necessary to manage a species. Since the threatened species list is adopted by rule, the provisions of the Administrative Procedure Act apply, including the requirement that a state agency give at least 30 days' notice of its intention to adopt a rule.
Under Parks and Wildlife Code, Chapter 68, a species is endangered under state law if it is 1) indigenous to Texas and listed by the federal government as endangered, or 2) designated by the executive director of the Texas Parks and Wildlife Department as "threatened with statewide extinction." At the current time, there are no species listed by the executive director as "threatened with statewide extinction;" therefore, the only species designated as endangered in Texas are those that are listed by the federal government. Under Chapter 68, the department is not required to list federally endangered species by rule; however, whenever the federal government modifies the list of endangered species, the executive director is required to file an order with the secretary of state accepting the modification. The department is required to provide notice of intent to file such an order at least 60 days prior to the filing of the order.
The amendment to §65.175 would add the San Felipe gambusia to the list of threatened species and remove the Arctic peregrine falcon from the same list. The San Felipe gambusia is known to occur only in San Felipe Springs and San Felipe Creek in Val Verde County. Staff has determined that because of its extremely limited range, extirpation is a certainty if the species ceases to occur in San Felipe Creek.
The Arctic peregrine falcon was declared recovered by the U.S. Fish and Wildlife Service (Service) in 1994 and was removed from the federal list of endangered species at that time. Federal rulemaking is currently underway that would allow states to authorize limited take of Arctic peregrines for falconry use. The amendment is necessary in order to allow their take by selected licensed falconers.
New §65.176, concerning Endangered Species, adopts the federal list of endangered species by rule. The intent of the department is to locate the federal list of endangered species and the state list of threatened within a single subchapter of the Texas Administrative Code in order to create single, comprehensive location for threatened and endangered species lists, which should make research, reference and citation more convenient.
New §65.177, concerning Violations and Penalties, relocates provisions previously contained in §65.176 which has been repealed and replaced with new §65.176, concerning Endangered Species.
The repeal of §65.176 will function to allow a new section to be designated as §65.176.
The amendment to §65.175 will function by adding the San Felipe gambusia to the list of threatened species and removing the Arctic peregrine falcon from the same list.
New §65.176 will function by incorporating by rule the list of species indigenous to Texas that are listed by the federal government as endangered.
New §65.177 will function by reiterating the penalties by statute for a violation of the rules.
The department received four comments opposing adoption of the proposed rules. Of the four comments, three provided a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response, follow.
One commenter opposed adoption and stated that the peregrine falcon is not listed as threatened or endangered by the federal government and should not be listed as threatened or endangered by the department. The department agrees with the commenter and responds that the rule as adopted removes the Arctic peregrine falcon from the list of threatened species; however, the department has determined that the American peregrine falcon (Falco peregrinus anatum) should remain on the list because the population of American peregrines in Texas is resident rather than migratory and its range and population in Texas is extremely limited. The department also notes that although the American peregrine falcon is not federally listed as either threatened or endangered, take is prohibited under federal law except under special use permit. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the federal list of endangered species should not be adopted by rule because the federal government cannot be trusted not to overreach and because "Texas can always proactively decide to include and exclude" from the list. The department disagrees with the comment and responds that once the federal government lists a species as endangered, it is automatically protected by state law under Parks and Wildlife Code, Chapter 68. No changes were made as a result of the comment.
One commenter opposed adoption and stated that both F.p anatum and F.p tundrius have recovered to the extent that neither should be state-listed as endangered or threatened, and that Texas should be preparing for the harvest of passage tundra peregrines as authorized by the U.S. Fish and Wildlife Service. The department agrees that the federal government has delisted both the Arctic and the American peregrine falcon and that removal of the Arctic peregrine falcon from the state list of threatened species is warranted; however, the department disagrees that the American peregrine falcon should be delisted. The department has determined that the American peregrine falcon (Falco peregrinus anatum) should remain on the list because the population of American peregrines in Texas is resident rather than migratory and its range and population in Texas is extremely limited. The department also notes that although the American peregrine falcon is not federally listed as either threatened or endangered, take is prohibited under federal law except under special use permit. No changes were made as a result of the comment.
The department received 212 comments is support of adoption of the proposed rules.
No groups or associations commented in favor of or against adoption of the proposed rules.
The amendment and new sections are adopted under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species, and Chapter 68, which authorizes regulations necessary to administer the provisions of Chapter 68 and to attain its objectives, including regulations to govern the publication and distribution of lists of species and subspecies of endangered fish or wildlife and their products and limitations on the capture, trapping, taking, or killing, or attempting to capture, trap, take, or kill, and the possession, transportation, exportation, sale, and offering for sale of endangered species.
§65.175.Threatened Species.
A threatened species is any species that the department has determined is likely to become endangered in the future. The following species are hereby designated as threatened species:
§65.176.Endangered Species.
The following species are endangered species.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 22, 2009.
TRD-200901525
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 13, 2009
Proposal publication date: December 19, 2008
For further information, please call: (512) 389-4775
The repeal is adopted under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 23, 2009.
TRD-200901528
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 13, 2009
Proposal publication date: December 19, 2008
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts an amendment to §65.265, concerning Permit Classes: Qualifications and Restrictions, without changes to the proposed text as published in the December 19, 2008, issue of the Texas Register (33 TexReg 10298).
The United States Fish and Wildlife Service (the Service) has authorized the issuance of a special-purpose permit to allow the possession and use of raptors by licensed falconers to abate depredation problems (50 CFR §21.27). Under an abatement permit, raptors may be used by permitted falconers to flush, haze, or take birds or other wildlife to mitigate depredation and nuisance problems, including threats to human health and safety. Under current rule, the number of raptors that may be possessed by a permitted falconer is specified according to the level of permit possessed by the falconer. The amendment adds new paragraph (6) to clarify that raptors possessed under an abatement permit do not count against the possession limits specified in the rule for each class of falconry permittee.
The amendment will function by allowing falconers to possess raptors in excess of recreational possession limits for abatement purposes.
The department received four comments opposing adoption to the proposed rule. All four commenters provided a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response, follow.
One commenter opposed adoption and stated that the department should not be adjusting possession limits for each permit class and that the department should instead be moving to change falconry regulations to be consistent with recent changes made to federal falconry rules.
The department disagrees with the comment in that the rule as adopted does not affect possession limits other than to specify that they do not apply to raptors held under a federal abatement permit. The department agrees that the falconry regulations should be changed to accommodate changes to the federal falconry rules and responds that it is currently in the process of developing those changes. No changes were made as a result to the comment.
One commenter opposed adoption and stated that the proposed rule does not "mirror the federal regulations at all." The commenter also stated that the rules should not allow wild-caught raptors to be used in abatement activities. The department disagrees that the rule as adopted does not mirror the federal regulations and responds that the intent of the rule is not to "mirror" the entirety of federal falconry regulations, but to allow falconers to possess raptors in excess of recreational possession limits for abatement purposes. The department also notes that federal law expressly prohibits the use of wild-caught raptors for abatement activities. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the current federal rules allow apprentices to qualify at age 12 and allow master falconers to possess up to five raptors. The department agrees with the comment, but responds that the rule as proposed was not intended to address anything but the possession of raptors for abatement purposes. No changes were made as a result of the comment.
One commenter opposed adoption and stated that a master falconer should be allowed to possess up to five raptors. The department agrees with the comment because recent changes to federal falconry rules allow master falconers to possess up to five raptors, but responds that the rule as proposed was not intended to address anything but the possession of raptors for abatement purposes. The department also notes that it is in the process of developing new falconry rules to accommodate recent changes to federal falconry rules. No changes were made as a result of the comment.
No groups or associations commented in favor of or against adoption of the proposed rule.
The amendment is adopted under 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 22, 2009.
TRD-200901526
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 12, 2009
Proposal publication date: December 19, 2008
For further information, please call: (512) 389-4775