Texas Register, Volume 38, Number 51, Pages 9155-9408, December 20, 2013 Page: 9,210
9155-9408 p. ; 28 cm.View a full description of this periodical.
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In addition to being listed as endangered, more than nine of
these species have also had critical habitat designated under
federal law, meaning that activities involving federal permits, li-
censes, or funding must be altered or amended, when neces-
sary, in order to protect the critical habitat. In order to receive
funds through the Wildlife Conservation and Restoration Pro-
gram and the State Wildlife Grants Program, each state is re-
quired by federal law to develop a wildlife action plan to assess
the health of wildlife and habitats, the goal of which is to pre-
vent species from becoming endangered. At the current time,
the Texas Conservation Action Plan lists 137 species of karst
invertebrates as species of greatest conservation need, mean-
ing that without some type of directed conservation effort these
species are likely, eventually, to become candidates for listing by
the federal government as threatened or endangered.
In addition to prohibition on the use of gasoline, or any other
stupefying, noxious or toxic chemical or substance to take,
harry, flush, or dislodge nongame wildlife, the proposed amend-
ment would also prohibit any person from knowingly possessing
wildlife that was captured as a result of the use of gasoline or an-
other stupefying, noxious, or toxic chemical or substance. The
department's reasoning is that if a specimen of nongame wildlife
was collected by use of an unlawful method, no person who
knows that the specimen was unlawfully collected should be
permitted to possess it. Rather than enumerate an exhaustive
list of stupefying, noxious, or toxic chemicals and substances,
the proposed rule identifies classes or types of substances and
compounds that are considered by the department to be stupe-
fying, noxious, or toxic. The department does not intend for the
classes of chemicals and substances identified in the proposed
rule to constitute a complete or exclusive list of chemicals or
substances that would be considered stupefying, noxious, or
toxic, but does believe that some sort of general indicator is of
benefit to the regulated community.
The proposed amendment also would create an exception for
pesticides being used in accordance with labeling instructions
by persons licensed under certain provisions of the Occupations
Code or the Agriculture Code. The department has determined
that the rules should not apply to persons who are licensed to
conduct structural or agricultural pest control activities.
Mr. John Davis, Diversity Program Director, has determined that
for each of the first five years that the rule as proposed will be
in effect, there will be no fiscal implications to state or local gov-
ernments as a result of administering or enforcing the rule.
Mr. Davis also has determined that for each of the first five years
that the rule as proposed is in effect, the public benefit antici-
pated as a result of enforcing or administering the proposed rule
will be the protection of nongame wildlife and the continued abil-
ity of nongame wildlife species to perpetuate themselves.
Under the provisions of Government Code, Chapter 2006, a
state agency must prepare an economic impact statement and a
regulatory flexibility analysis for a rule that may have an adverse
economic impact on small businesses and micro-businesses.
As required by Government Code, 2006.002(g), the Office of
the Attorney General has prepared guidelines to assist state
agencies in determining a proposed rule's potential adverse eco-
nomic impact on small businesses. Those guidelines state that
an agency need only consider a proposed rule's "direct adverse
economic impacts" to small businesses and micro-businesses to
determine if any further analysis is required. For that purpose,
the department considers "direct economic impact" to mean a re-
quirement that would directly impose recordkeeping or reportingrequirements; impose taxes or fees; result in lost sales or profits;
adversely affect market competition; or require the purchase or
modification of equipment or services.
The department has determined that the proposed rule could
result in direct adverse economic impacts to small businesses
and/or micro-businesses. Since the proposed rule would pro-
hibit the use of noxious or toxic substances to collect nongame
wildlife, persons who employ such methods to collect nongame
wildlife for a commercial purpose, or who buy or sell nongame
wildlife collected by such a method, could be affected. Under
current rule, no person may collect or possess nongame wildlife
for a commercial purpose unless that person has obtained a per-
mit from the department. In order to determine how many per-
mittees might qualify as small businesses or micro-businesses,
in 2011, the department surveyed all 676 persons in the state
who were permitted to collect nongame wildlife for a commercial
purpose or engage in the purchase and sale of nongame wildlife.
As of December 1, 2013, there are 507 persons in the state who
are permitted to collect nongame wildlife for a commercial pur-
pose or engage in the purchase and sale of nongame wildlife.
The department believes that the 2011 survey data remains rep-
resentative of overall trends and behaviors in the regulated com-
munity.
The department received 97 responses, with six respondents
indicating that they had used gasoline or another noxious sub-
stance to collect nongame wildlife in 2010. Four of the six re-
spondents indicated having engaged in commercial activities us-
ing nongame wildlife collected by means of gasoline or other
noxious substances within the last two years. Of the four re-
spondents who indicated engaging in a commercial activity us-
ing nongame wildlife obtained by the use of noxious or toxic sub-
stances, one reported sales of $7,690 in the 2008-2009 license
year (September 1 - August 31) and $3,960 in the 2009-2010
license year. The second respondent reported sales of $3,500
and $3,000 in the referenced license years. The third respon-
dent indicated sales of $300 and $350, respectively. A fourth
respondent reported no realized dollars after expenses.
To the extent that the respondents would be considered small
or micro-businesses, there could be an adverse impact. How-
ever, none of these respondents indicated that they bought or
sold nongame wildlife as a for-profit entity. To qualify as a small
business or micro-business under Government Code, Chapter
2006, the entity must be "formed for the purpose of making a
profit." Tex. Gov't Code, 2006.001. As a result, none of the re-
spondents appear to meet the definition of a small business or
micro-business as set forth in Government Code, Chapter 2006,
and neither an Economic Impact Statement (EIS) nor a Regula-
tory Flexibility Analysis (RFA) is required.
However, the department has nonetheless prepared an EIS
and RFA to address the three respondents who reported sales
of nongame wildlife collected by the use of noxious or toxic
substances. The department has determined that the number of
small and/or micro-businesses subject to the rule is not greater
than 507, which is the total number of persons permitted to en-
gage in the collection, purchase, and sale of nongame wildlife,
although an unknown number of permittees do not engage in
commercial activities. In estimating the economic impact of the
proposed rules on these permittees, the department consid-
ers that the proposed rule would not prohibit the collection of
nongame wildlife, just the use of noxious or toxic substances.
Therefore, under the proposed rule, permittees would be allowed
to use other means to collect nongame wildlife, such as hand-38 TexReg 9210 December 20, 2013 Texas Register
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Texas. Secretary of State. Texas Register, Volume 38, Number 51, Pages 9155-9408, December 20, 2013, periodical, December 20, 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth379981/m1/56/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.