Commission Agenda Item No. 4
Exhibit A

COMMERCIAL NONGAME PERMIT RULES

USE OF NOXIOUS SUBSTANCES TO COLLECT NONGAME WILDLIFE

PROPOSAL PREAMBLE

1. Introduction.

          The Texas Parks and Wildlife Department (TPWD) proposes an amendment to §65.328, concerning Means and Methods. The proposed amendment would prohibit the use of noxious or toxic substances to disturb or collect nongame wildlife (popularly referred to as “gassing”) and the possession of nongame wildlife collected by the use of such substances, and would provide an exemption for persons engaged in structural or agricultural pest control activities.

          The practice of using noxious or toxic substances (gasoline, ammonia, etc.) to force wildlife from burrows, dens, and other places of concealment (“refugia”) has come under increasing scientific scrutiny as questions arise concerning negative ecological impacts to associated systems, populations, and non-target species as a result of the practice. As of 2012, the practice is partially or completely prohibited in 29 states, including the four states that share a border with Texas (Arkansas, Louisiana, New Mexico, Oklahoma). Under Parks and Wildlife Code, §§67.002, 67.004, and 67.0041, the department is required to develop and administer management programs to ensure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully, and 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. The proposed amendment is intended to ensure the ability of nongame species to perpetuate themselves by protecting nongame wildlife from the indiscriminate application of noxious or toxic substances.

         The biological impacts of noxious substances used to collect or harass nongame wildlife have not been exhaustively studied, but the literature that exists supports the conclusion that the practice negatively affects not only those animals that are being pursued, but other animals that co-inhabit or subsequently use a treated refugium. For instance, researchers (Speake and Mount, 1973) investigating the effects of one-time “gassing” events on gopher tortoise burrows (under variable  exposure intensities and durations)  demonstrated that “gassing” resulted in significant mortality in four species of snake and one species of  mammal.  Laboratory experiments conducted on seven species of snakes, lizards, and toads by Campbell, et al. (1989) determined that a 30-minute vapor exposure produced a “dramatic and obvious” effect on the test subjects and resulted in a range of outcomes from short-term impairment to death. Other studies have shown a strong correlation between exposure to petroleum products and mortality in various species (Drew and Fouts, 1974; Svirbely, et al., 1943; Carpenter, et al 1944; Gerarde, 1988). The consumption of animals that are exposed can create further harm to animal populations.  The effects of exposure to reproductive success and bioenergetics generally could be affected as well.

         In addition, the use of noxious chemicals to flush or capture wildlife is a demonstrable threat to species that use karst environments as habitat, which is of particular importance in Texas. Karst environments are typically created by the long-term chemical action of water on calcareous rocks such as limestone, which creates sinkholes, caverns, and other features that then become habitat for highly specialized aquatic and terrestrial organisms. Karst ecosystems by their nature are fragile and especially sensitive to pollutants.  As a result, increased human activity in and adjacent to karst environments can have a significant impact on karst species. Multiple studies have demonstrated the toxicity of vapors from volatile petroleum-based chemicals to invertebrate life (Sen, 1914;  Macfie, 1917; Freeborn and Atsatt, 1918; Hacker, 1925; Ginsburg, 1927, 1929; Sicault and Messerlin, 1936). At the current time, there are more than 20 karst species occurring in Texas that are listed as endangered or threatened by the U.S. Fish and Wildlife Service. Most endangered karst species are invertebrates, such as the Comal Springs Riffle Beetle, Bone Cave Harvestman, and Government Canyon Bat Cave Spider.  Some are known only from single sites, making them some of the most geographically limited organisms in the world. 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, licenses, or funding must be altered or amended, when necessary, in order to protect the critical habitat.  In order to receive funds through the Wildlife Conservation and Restoration Program and the State Wildlife Grants Program, each state is required by federal law to develop a wildlife action plan to assess the health of wildlife and habitats, the goal of which is to prevent 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, meaning 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 amendment would also prohibit any person from knowingly possessing wildlife that was captured as a result of the use of gasoline or another 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 stupefying, 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.

2. Fiscal Note.

         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 governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

         Mr. Davis also has determined that for each of the first five years that the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the protection of nongame wildlife and the continued ability of nongame wildlife species to perpetuate themselves.

         (B) 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 economic 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 requirement that would directly impose recordkeeping or reporting requirements; 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 prohibit 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 permit from the department. In order to determine how many permittees 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 purpose or engage in the purchase and sale of nongame wildlife. The department believes that the 2011 survey data remains representative of overall trends and behaviors in the regulated community.

         The department received 97 responses, with six respondents indicating that they had used gasoline or another noxious substance to collect nongame wildlife in 2010. Four of the six respondents indicated having engaged in commercial activities using nongame wildlife collected by means of gasoline or other noxious substances within the last two years. Of the four respondents who indicated engaging in a commercial activity using nongame wildlife obtained by the use of noxious or toxic substances, one reported sales of $7,690 in the 2008-09 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 respondent 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 microbusinesses, there could be an adverse impact.  However, 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 respondents 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 Regulatory 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 microbusinesses subject to the rule is not greater than 507, which is the total number of persons permitted to engage 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 considers 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-collection, use of mechanical devices, or benign substances. If these other means of collecting nongame wildlife are as effective, the rule will not result in any negative economic impacts to affected permittees.  If these other means of collecting nongame wildlife are considered to be as effective, but would require a greater investment in equipment or materials than is required for the use of noxious or toxic substance, an additional investment for equipment and materials would be required. If these other means of collecting nongame wildlife are not considered to be as effective, a permittee would have to invest more time in collection effort to compensate for the reduction in collection efficiency imposed by the rule. Given the highest annual sales total reported to the department ($7,690), the department estimates that the maximum adverse economic impact to any permittee would be $7,690, which represents the complete inability of a permittee to collect nongame wildlife under the proposed rule.

         The department has considered alternative regulatory mechanisms to minimize adverse impacts on permittees. The department considered not regulating the use of noxious or toxic substances to take nongame wildlife; however, this alternative frustrated the purpose of the proposed rule, which is to protect nongame wildlife and habitat from an indiscriminate method of take that is demonstrably deleterious to nongame wildlife. The department considered allowing the use of noxious or toxic substances during an open season, which would allow permittees to engage in that activity but minimize the timeframe that noxious or toxic substances could be used. Again, the alternative frustrated the goal of the rule, since any use of noxious or toxic substances to take nongame wildlife has the potential to affect nontarget species and other organisms in the food chain. Similarly, the department considered allowing the use of noxious or toxic substances in certain geographic areas of the state.  However, like an open season, this alternative would frustrate the goal of the rule. The department also considered allowing the use of noxious or toxic substances under the supervision of a department employee to ensure that nongame wildlife are collected with minimal exposure, but that alternative was rejected because in addition to frustrating the goal of the rule and requiring workforce commitments that are impractical, the alternative would be problematic and inconvenient for the regulated community because of the need to schedule collection activities in advance.  The department has therefore concluded that there is no other way to achieve the goal of the proposed rule.

         (C) 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. As noted above, using a range from the lowest in sales to the highest in sales ($300 to $7,690) and assuming an expansion to six individuals, the range of total aggregate sales (statewide) is estimated to be between $1,800 and $46,140.  Based on the dollar values reported by the survey respondents, the department has determined that any direct impact of the proposed rule on local economies will be extremely minimal, as the economic activity directly generated by nongame wildlife collection, even if it all occurred in one location, when expressed as a percentage of the total annual economic activity, would be very slight in most if not all counties. For instance, according to the latest available Census Bureau data (2007) for certain types of economic activity (manufacturers’ shipments, merchant wholesaler sales, retail sales, and accommodation and food service sales), even for those counties reporting the lowest amount of economic activity, the highest aggregate sales from collection of nongame wildlife by use of noxious or toxic substances would represent no more than approximately .01 percent the economic activity in those counties.

         Department survey data also indicate that of the respondents reporting sales of nongame wildlife obtained by “gassing,” one reported employing four part-time employees and five indicated that they did not employ anyone. This would also indicate that any local employment impacts, even if they all occurred in one place, would be minimal. These data indicate that the collection and sale of nongame wildlife would not be a major component of local economies at the county level.

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

         (E) 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.

4. Request for Public Comment.

         Comments on the proposal may be submitted to Andy Gluesenkamp, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8722; email: andy.gluesenkamp@tpwd.state.tx.us.

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §67.004, which requires 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 §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The amendment affects Parks and Wildlife Code, Chapter 67.

6. Rule Text.

         § 65.328. Means and Methods.

                 (a)Any device employed or emplaced to take or attempt to take nongame wildlife shall be marked with a gear tag.   The gear tag must bear the name and address of the person using the device and the date the device was set out.  The information on the gear tag must be legible.  The gear tag is valid for 30 days following the date indicated on the tag.

                 (b)Any device used to take turtles shall be set such that:

                         (1)the opening or entrance to the device remains above water at all times; and

                         (2)the holding area of trap provides a sufficient area above water to prevent trapped turtles from drowning.

                 (c) It is an offense for any person to:

                         (1) use a stupefying, noxious, or toxic chemical or substance to take, harry, flush, or dislodge nongame wildlife; or

                         (2) knowingly possess any nongame wildlife that has been taken or obtained by use of gasoline or any stupefying, noxious, or toxic chemical or substance, except as provided by subsection (e) of this section.

                 (d) For the purposes of this section, “stupefying, noxious, or toxic chemical or substance” includes but is not limited to:

                         (1) substances classified by the United States Environmental Protection Agency as “total petroleum hydrocarbons” (such as gasoline, kerosene, mineral oils, benzene, toluene, xylenes, naphthalene, and other petroleum products and components);

                         (2) non-hydrocarbon volatile organic compounds (such as acetone, alcohol, ether, formaldehyde, carbon tetrachloride, chlorofluorocarbons, etc.);

                         (3) caustic substances and blistering agents (acids, alkalis, phenols, chlorides, ammonia, etc.);

                         (4) pesticides;

                         (5) herbicides;

                         (6) fungicides; and

                         (7) detergents.

                 (e)  Subsection (c) of this section does not apply to the use of registered pesticides in accordance with labeling instructions by persons licensed under the provisions of:

                         (1)  Occupations Code, Chapter 1951 (Texas Structural Pest Control Act); or

                         (2) Agriculture Code, Chapter 76.

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

         Issued in Austin, Texas, on