PUBLIC LANDS PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §65.190 and §65.191, concerning the Public Lands Proclamation. The proposed amendment to §65.190, concerning Application, would add “Blue Elbow Swamp-Tony Houseman WMA/SP” to the list of wildlife public hunting lands contained in the section. The area was acquired in 1997 but inadvertently was not included in the inventory of public hunting lands listed in the section.

         The proposed amendment to §65.191, concerning Definitions, would add definitions of “airboat” and “motorboat.”  Advances in propulsion systems technology (belt drives, mud pumps, etc.) have increased the ability of shallow-draft vessels to operate in very shallow waters and wetlands, which poses threats to habitats on WMAs as a result of the physical disturbance of soils and vegetation. Current rules prohibit the use of airboats on WMAs except by executive order or written permission, and several WMAs impose site-specific restrictions on the operation of motorboats; however, the terms “airboat” and “motorboat” are not defined by rule. The proposed amendment would supply a regulatory meaning for each of those terms for enforcement purposes. By clearly defining what is meant by those terms, the department’s existing regulations regarding public access and use can be enforced without ambiguity.

2. Fiscal Note.

         Ms. Linda Campbell, Public Hunting and Private Lands program director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Ms. Campbell also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be accurate references and clear definitions within department regulations.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) 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 effect affect 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. Since the proposed rules do not affect small businesses or microbusinesses, the department has determined that the proposed amendment will not impose any direct adverse economic effects on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

         (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 rules.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted to Linda Campbell, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4395 (e-mail: linda.campbell@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 81, Subchapter E, which authorizes the Parks and Wildlife Commission to promulgate rules governing access to and use of public hunting lands and specific hunting, fishing, recreational, or other use of wildlife management areas and requires the commission to prescribe by rule any terms, conditions, and fees for the issuance and use of permits.

         The proposed amendment affects Parks and Wildlife Code, Chapter 81, Subchapter E.

         §65.190. Application.

                 (a) This subchapter applies to all activities subject to department regulation on lands designated by the department as public hunting lands, regardless of the presence or absence of boundary markers. Public hunting lands are acquired by lease or license, management agreements, trade, gift, and purchase. Records of such acquisition are on file at the Department’s central repository.

                 (b) On U.S. Forest Service Lands designated as public hunting lands (Alabama Creek, Bannister, Caddo, Lake McClellan Recreation Area, Moore Plantation, and Sam Houston National Forest WMAs) or any portion of Units 902 and 903, persons other than hunters are exempt from the provisions of this subchapter, except for the provisions of §65.199(15) of this title (relating to General Rules of Conduct).

                 (c) On U.S. Army Corps of Engineer Lands designated as public hunting lands (Cooper, Dam B, Granger, Pat Mayse, Ray Roberts, Somerville, and White Oak Creek WMAs), persons other than hunters and equestrian users are exempt from requirements for an access permit.

                 (d) On state park lands designated as public hunting lands, access for fishing and recreational use is governed by state park regulations.

                 (e) Public hunting lands include, but are not limited to, the following:

                         (1) Alabama Creek WMA (Unit 904);

                         (2) Alazan Bayou WMA (Unit 747);

                         (3) Atkinson Island WMA;

                         (4) Bannister WMA (Unit 903);

                         (5) Big Lake Bottom WMA (Unit 733);

                         (6) Black Gap WMA (Unit 701);

                         (7) Blue Elbow Swamp-Tony Houseman WMA/SP;

                         (8)[(7] Caddo Lake WMA (Unit 730);

                         (9)[(8)] Caddo National Grasslands WMA (Unit 901);

                         (10)[(9)] Candy Abshier WMA;

                         (11)[(10)] Cedar Creek Islands WMA (includes Big Island, Bird Island, and Telfair Island Units);

                         (12)[(11)] Chaparral WMA (Unit 700);

                         (13)[(12)] Cooper WMA (Unit 731);

                         (14)[(13)] D.R. Wintermann WMA;

                         (15)[(14)] Dam B WMA — includes Angelina-Neches Scientific Area (Unit 707);

                         (16)[(15)] Designated Units of the Las Palomas WMA;

                         (17)[(16)] Designated Units of Public Hunting Lands Under Short-Term Lease;

                         (18)[(17)] Designated Units of the Playa Lakes WMA;

                         (19)[(18)] Designated Units of the State Park System;

                         (20)[(19)] Elephant Mountain WMA (Unit 725);

                         (21)[(20)] Gene Howe WMA (Unit 755) — includes Pat Murphy Unit (Unit 706);

                         (22)[(21)] Granger WMA (Unit 709);

                         (23)[(22)] Guadalupe Delta WMA (Unit 729) — includes Mission Lake Unit (720), Guadalupe River Unit (723), Hynes Bay Unit (724), and San Antonio River Unit (760);

                         (24)[(23)] Gus Engeling WMA (Unit 754);

                         (25)[(24)] James Daughtrey WMA (Unit 713);

                         (26)[(25)] J.D. Murphree WMA (Unit 783);

                         (27)[(26)] Justin Hurst WMA (Unit 721);

                         (28)[(27)] Keechi Creek WMA (Unit 726);

                          (29)[(28)] Kerr WMA (Unit 756);

                         (30)[(29)] Lake McClellan Recreation Area (Unit 906);

                         (31)[(30)] Lower Neches WMA (Unit 728) — includes Old River Unit and Nelda Stark Unit;

                         (32)[(31)] Mad Island WMA (Unit 729);

                         (33)[(32)] Mason Mountain WMA (Unit 749);

                         (34)[(33)] Matador WMA (Unit 702);

                         (35)[(34)] Matagorda Island WMA (Unit 722);

                         (36)[(35)] McGillvray and Leona McKie Muse WMA (Unit 750);

                         (37)[(36)] M.O. Neasloney WMA;

                         (38)[(37)] Moore Plantation WMA (Unit 902);

                         (39)[(38)] Nannie Stringfellow WMA (Unit 716);

                         (40)[(39)] North Toledo Bend WMA (Unit 615);

                         (41)[(40)] Old Sabine Bottom WMA (Unit 732);

                         (42)[(41)] Old Tunnel WMA;

                         (43)[(42)] Pat Mayse WMA (Unit 705);

                         (44)[(43)] Ray Roberts WMA (Unit 501);

                          (45)[(44)] Redhead Pond WMA;

                         (46)[(45)] Richland Creek WMA (Unit 703);

                         (47)[(46)] Sam Houston National Forest WMA (Unit 905);

                         (48)[(47)] Sierra Diablo WMA (Unit 767);

                         (49)[(48)] Somerville WMA (Unit 711);

                         (50)[(49)] Tawakoni WMA (Unit 708);

                         (51)[(50)] Walter Buck WMA (Unit 757);

                         (52)[(51)] Welder Flats WMA;

                         (53)[(52)] White Oak Creek WMA (Unit 727); and

                         (54)[(53)] Other numbered units of public hunting lands.

         §65.191. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in §65.3 of this title (relating to Statewide Hunting and Fishing Proclamation).

                 (1) Adult — A person 17 years of age or older.

                 (2) Airboat — A boat propelled mechanically by movement of air, including, but not limited to a fan, propeller, or jet.

                 (3)[(2)] All terrain vehicle (ATV) — Any vehicle meeting the definition of an ATV under Transportation Code, §663.001.

                 (4)[(3)] Annual Public Hunting (APH) Permit — A permit, valid from issuance date through the following August 31, which allows entry to designated public hunting lands at designated times and the taking of wildlife resources as designated.

                 (5)[(4)] Application fee — A non-refundable fee that may be required to accompany and validate an individual’s application for a special permit.

                 (6)[(5)] Authorized supervising adult — A parent, legal guardian, or individual at least 18 years of age who assumes liability responsibility for a youth.

                 (7)[(6)] Blind — Any structure assembled of man-made or natural materials for the purpose or having the effect of promoting concealment or increasing the field of vision of a person.

                 (8)[(7)] Buckshot — Lead pellets ranging in size from .24-inch to .36-inch in diameter normally loaded in a shotgun (includes, but is not limited to 0 and 00 buckshot).

                 (9)[(8)] Camping — The use of public hunting lands for overnight accommodation, which includes sleeping, the storage of unattended personal possessions, or the use of a motor vehicle as a lodging.

                 (10)[(9)] Competitive hunting dog event (field trial) — A department-sanctioned contest in which the skills of hunting dogs are tested.

                 (11)[(10)] Concurrent hunt — A hunt that maintains the same permit requirements, hunt dates, means and methods, or shooting hours or combinations thereof for more than one species of animal, as designated and subject to any special provisions.

                 (12)[(11)] Consumptive user — A person who takes or attempts to take wildlife resources.

                 (13)[(12)] Designated campsite — A designated area where camping and camping activities are authorized.

                 (14)[(13)] Designated days — Specific days within an established season or period of time as designated by the executive director.

                 (15)[(14)] Designated road — A constructed roadway indicated as being open to the public by either signs posted to that effect or by current maps and leaflets distributed at the area. Roads closed to the public may additionally be identified by on-site signing, barricades at entrances, or informational literature made available to the public. Designated roads do not include county or state roads or highways.

                 (16)[(15)] Designated target practice area — An area designated by on-site signing or by order of the executive director within which the discharge of firearms for target practice is authorized.

                 (17)[(16)] Designated units of the state park system — Specific units of the state park system approved by the commission for application of provisions of this subchapter.

                 (18)[(17)] Disabled person — A person who possesses a placard, license plate, or other documentation issued to that person by the State of Texas under the provisions of Transportation Code, Chapter 681.

                 (19)[(18)] General Season — A specified time period, or designated days within a specified time period, during which more than one means or methods (as designated) may be used to take designated species.

                 (20)[(19)] Headwear — Garment or item of apparel worn on or about the head.

                 (21)[(20)] Immediate supervision — Control of a youth by an authorized supervising adult issuing verbal instructions in a normal voice level.

                 (22)[(21)] Lands within a desert bighorn sheep cooperative — An aggregation of lands for which the concerned landowners and the Texas Parks and Wildlife Department have agreed to coordinate efforts to restore, manage, and harvest desert bighorn sheep.

                 (23)[(22)] Limited Public Use (LPU) Permit — A permit, valid from issuance date through the following August 31, which allows access to designated wildlife management areas and public hunting lands at the same times that access is provided by an APH permit.

                 (24)[(23)] Limited use zone — An area designated by order of the executive director and/or by boundary signs on the area, within which public use is prohibited or restricted to specified activities.

                 (25)[(24)] Loaded firearm — A firearm containing a live round of ammunition within the chamber and/or the magazine, or if muzzleloading, one which has a cap on the nipple or a priming charge in the pan.

                 (26)[(25)] Mentored Hunting Permit — A permit authorizing access to public hunting lands for the purpose of attending a department-sponsored workshop, including participation in a designated hunting opportunity subsequent to the workshop.

                 (27)  Motorboat—Any vessel being propelled by machinery, but does not include a boat being propelled solely by paddle, pole, oar, or wind.

                 (28)[(26)] Motor vehicle — As defined by Transportation Code, Chapter 541.

                 (29)[(27)] Off-road vehicle — An ATV, a utility vehicle, a vehicle that may not lawfully be operated on a public roadway, or any vehicle that is manufactured or adapted for off-road use.

                 (30)[(28)] On-site registration — The requirement for public users to register at designated places upon entry to and exit from specified public hunting lands, but does not constitute a permit.

                 (31)[(29)] Permit — Documentation authorizing specified access and public use privileges on public hunting lands.

                 (32)[(30)] Predatory animals — Coyotes and bobcats.

                 (33)[(31)] Preference point system — A method of special permit distribution in which the probability of selection is progressively enhanced by prior unsuccessful applications within a given hunt category by individuals or groups.

                 (34)[(32)] Public hunting area — A portion of public hunting lands designated as being open to the activity of hunting, and may include all or only a portion of a certain unit of public hunting land.

                 (35)[(33)] Public hunting compartment — A defined portion of a public hunting area to which hunters are assigned and authorized to perform public hunting activity.

                 (36)[(34)] Public hunting lands — Lands identified in §65.190 of this title (relating to Application) or by order of the executive director on which provisions of this subchapter apply.

                 (37)[(35)] Recreational use — Any use or activity other than hunting or fishing.

                 (38)[(36)] Regular Permit — A permit issued on a first-come-first-served basis, on-site, at the time of the hunt that allows the taking of designated species of wildlife on the issuing area.

                 (39)[(37)] Restricted area — All or portions of public hunting lands identified by boundary signs as being closed to public entry or use.

                 (40)[(38)] Sanctuary — All or a portion of public hunting lands identified by boundary sign as being closed to the hunting of specified wildlife resources.

                 (41)[(39)] Slug — A metallic object designed for being fired as a single projectile by discharge of a shotgun.

                 (42)[(40)] Special Access Permit — A permit, issued pursuant to a selection procedure, that allows access to a specified unit of the state park system at a specified time.

                 (43)[(41)] Special Permit — A permit, issued pursuant to a selection procedure, which allows the taking of designated species of wildlife.

                 (44)[(42)] Special package hunt — A public hunt conducted for promotional or fund raising purposes and offering the selected applicant(s) a high quality experience with enhanced provisions for food, lodging, transportation, and guide services.

                 (45)[(43)] Tagging fee — A fee which may be assessed in addition to the special permit fee for the harvest of alligators for commercial sale or prior to the attempted harvest of desert bighorn sheep or designated exotic mammals.

                 (46)[(44)] Wildlife management area (WMA) — A unit of public hunting lands which is intensively managed for the conservation, enhancement, and public use of wildlife resources and supporting habitats.

                 (47)[(45)] Wildlife resources — Game animals, game birds, furbearing animals, alligators, marine mammals, frogs, fish, crayfish, other aquatic life, exotic animals, predatory animals, rabbits and hares, and other wild fauna.

                 (48)[(46)] Wounded exotic mammal — An exotic mammal leaving a blood trail.

                 (49)[(47)] Youth — A person less than 17 years of age.

         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