Presenters: Matt Wagner
Gary Garrett

Commission Agenda Item No. 7
Threatened and Endangered Nongame Species
Regulations Amendments
January 22, 2009

I. Executive Summary: This item seeks adoption of proposed rules governing threatened and endangered nongame species. The proposed amendments would:

II. Discussion: Under Parks and Wildlife Code, Chapter 68, a species of fish or wildlife is endangered if it is: 1) designated by the federal government as endangered, or 2) listed as "threatened with statewide extinction" by the executive director of the department. At the current time, no species have been designated by the executive director as threatened with statewide extinction, which means that the state list of endangered species and the federal list of endangered species are identical. Chapter 68 of the Code also requires the department to file an order of acceptance with the Texas Secretary of State each time the federal government modifies the list of endangered species to include or remove a species native to Texas. The order is effective when filed. If the executive director is intending to enter an order listing a species as "threatened with statewide extinction," the department must give at least 60 days notice prior to filing the order.

Under Chapter 67 of the Code, the commission regulates nongame wildlife, which consists of fish and wildlife that are not classified as game animals, game birds, game fish, fur-bearing animals, alligators, native shrimp, oysters, or endangered species. Thus, the state's list of threatened species is promulgated by rule under the authority of Chapter 67 and defines "threatened" as "likely to become endangered in the future." Alterations to the list of state threatened species are effected under the rulemaking provisions of the Administrative Procedure Act, which requires a minimum of 30 days notice prior to adoption by the commission.

Prior to 1996, the list of endangered species was contained in department regulations, along with the state list of threatened species. In 1996, the list of federally endangered species was removed from the rule, an administrative adjustment that did not affect protection of those species under state law. For the sake of simplicity and ease of reference, staff believes that the lists of endangered and threatened species should be in one place in department regulations, which would also allow the department to accommodate the differential notice requirement by synchronizing that process.

Additionally, the Arctic peregrine falcon was declared recovered by the U.S. Fish and Wildlife Service (Service) in 1994. Federal rulemaking is currently underway that would allow states to authorize limited take of Arctic peregrines for falconry use, and staff proposes to remove the Arctic peregrine falcon from the list of threatened species in order to allow their take by selected licensed falconers.

The Regulations Committee at its November 2008, meeting authorized staff to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the December 19, 2008, issue of the Texas Register (33 TexReg 10297). A summary of public comment on the proposed rules will be presented.

III. Recommendation: Staff recommends the Commission adopt the following motion:

"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 with changes as necessary to the proposed text as published in the December 19, 2008, issue of the Texas Register (33 TexReg 10297)."

Attachments - 1

  1. Exhibit A - Proposed Rules