Commission Agenda Item No. 4
Presenter: Justin Dreibelbis

Action
Public Lands Proclamation
Recommended Adoption of Proposed Changes
May 25, 2017

I.      Executive Summary:  This item seeks adoption of proposed amendments to the Public Lands Proclamation in the Texas Register for public comment.  The proposed amendments are as follows:

II.     Discussion:  Under Parks and Wildlife Code, Chapter 81, Subchapter E, the Texas Parks and Wildlife (TPW) Commission is authorized to promulgate rules governing access to and use of public hunting lands and specific hunting, fishing, recreational, or other use of wildlife management areas (WMA) and requires the Commission to prescribe by rule any terms, conditions, and fees for the issuance and use of permits.

Parks and Wildlife Code, Chapter 12, Subchapter A, provides that a tract of land purchased primarily for a purpose authorized by the Parks and Wildlife Code may be used for any authorized function of the Texas Parks and Wildlife Department “if the TPW Commission determines that multiple use is the best utilization of the land’s resources.” Additionally, Chapter 81, Subchapter E, provides the Commission with the authority to establish open seasons, and authorizes the Executive Director to determine bag limits, means and methods, and conditions for the taking of wildlife resources on wildlife management and public hunting lands, which includes units of the State Park System designated as public hunting lands.

Staff was authorized at the March 22, 2017 Work Session meeting to publish the proposed rules in the Texas Register for public comment. Those rules were published in the April 21, 2017, issue of the Texas Register (42 TexReg 2144). A summary of public comment will be presented at the meeting.

III.   Recommendation:  Staff recommends that the TPW Commission adopt the following motions:

“The Texas Parks and Wildlife Commission adopts amendments to §§65.190, 65.191, 65.193, 65.197, 65.199, and 65.204, concerning the Public Lands Proclamation, with changes as necessary to the proposed text as published in the April 21, 2017 issue of the Texas Register (42 TexReg 2144)."

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 4
Exhibit A

PUBLIC LANDS PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§65.190, 65.191, 65.193, 65.197, 65.199, and 65.204, concerning the Public Lands Proclamation. The proposed amendments are a result of the annual review of the public lands proclamation, as well as the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

        The proposed amendment to §65.190, concerning Application, would add the East Texas Conservation Center, Roger Fawcett Wildlife Management Area (WMA), the Nature Center, and Yoakum Dunes WMA to the list of WMAs and public hunting lands to which the rules apply. All four locations have been recently added to the department’s inventory and made available for public hunting opportunity.

        The proposed amendment to §65.191, concerning Definitions, would alter the definitions of “special access permit” and “preference points.” Until recently, the department issued a special access permit to authorize access to a specified unit of state parks for purposes of participation in public hunting opportunity. With the transition to an automated system for drawn public hunts, such a permit is no longer necessary for that purpose. However, the permit is being repurposed to provide access to a non-hunting person during authorized activities, which is necessary to allow for persons selected for public hunting opportunity to be accompanied by a friend or family member. The proposed amendment also would replace the term “preference points” with the term “loyalty points,” which is necessary to more accurately describe the department’s process for increasing the probability of selection for public hunting opportunity following unsuccessful attempts.

        The proposed amendment to §65.193, concerning Access Permit Required and Fees, would eliminate a reference to a state park that no longer exists, remove subsections (c) – (e) because they duplicate definitions contained in §65.191, eliminate references to “special access permits” because that term is no longer meaningful in the context in which it is used, and standardize references to special permits. The amendment is nonsubstantive and intended to reduce confusion and increase clarity.

        The proposed amendment to §65.197, concerning Reinstatement of Preference Points, would retitle the section “Reinstatement of Loyalty Points” and replace the word “preference” with the word “loyalty” for reasons discussed in the proposed amendment to §65.190. The proposed amendment also would eliminate paragraph (2), which provides for the reinstatement of loyalty points if the selected applicant was assigned a hunt category, hunt area, or hunt period other than was indicated on the application and does not participate in the hunt. Prior to implementation of an automated system for entering public hunt drawings, the entry, selection, and notification processes were manual and the occasional human error occurred during processing, resulting in the inadvertent assignment to applicants of hunts other than those for which the person applied. With the automated system, however, the only way for an applicant to be erroneously assigned a hunt opportunity is for the applicant to have applied for the wrong hunt; thus, the mistake is on the applicant’s part. Therefore, it is no longer necessary for the department to provide for reinstatement of loyalty points in such situations, since the error is not on the department’s part. The proposed amendment also would create an exception for persons who have paid the appropriate fee and were prevented from participating in the scheduled hunt because of military deployment. The department believes that the obligations of military service are an appropriate reason for reinstating loyalty points.

        The proposed amendment to §65.199, concerning General Rules of Conduct, would remove references in subsection (d) to a defunct department publication entitled "Applications for Drawings on Public Hunting Lands." With the implementation of the new online system for application, the department has ceased to print hard copy booklets; however, the possibility remains that unforeseen developments such as natural events (drought, hurricane, flood, etc.) could make it necessary to cancel/re-schedule/alter hunting opportunities. Therefore, the proposed amendment would allow for the provision of hunting opportunity involving dogs following the issuance of an executive order published on the department’s website.

        The proposed amendment to §65.204,  concerning Recreational Use of Wildlife Management Areas, would clarify that the provisions of the subchapter apply on public hunting lands as well as wildlife management areas.

2. Fiscal Note.

        Justin Dreibelbis, Director of the Private Lands and Public Hunting Program, 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 or local governments as a result of administering or enforcing the proposed amendments.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be clearer, better organized, and more accurate regulations governing the processes and entities administered under the provisions of Chapter 65, Subchapter H.

        (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 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 rules will not directly affect small businesses and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (D) The department has not drafted a local employment impact statement under the Administrative Procedure 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 rule may be submitted to Robert Macdonald, Regulations Coordinator, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §81.006, which prohibits the take, attempted take, or possession of any wildlife or fish from a wildlife management area except in the manner and during the times permitted by the department under Chapter 81, Subchapter E, and under  Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to establish an open season on wildlife management areas and public hunting lands, authorizes the executive director to regulate numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas and public hunting lands, and authorizes the commission to adopt rules governing recreational activities in wildlife management areas.

        The proposed amendments affect Parks and Wildlife Code, Chapter 81.

6. Text.

        §65.190. Application.

                 (a) – (d) (No change.)

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

                         (1) – (19) (No change.)

                         (20) East Texas Conservation Center (Unit 780);

                         (21) Elephant Mountain WMA (Unit 725);

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

                         (23)[(22)] Granger (Unit 709);

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                         (47) Roger Fawcett WMA (Unit 781);

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

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

                         (50)[(48)] Somerville (Unit 711);

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

                         (52) The Nature Center (Unit 021);

                         (53)[(50)] Welder Flats WMA;

                         (54)[(51)] White Oak Creek WMA (Unit 727); [and]

                         (55) Yoakum Dunes WMA (Unit 752); and

                         (56)[(52)] 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) – (32) (No change.)

                 (33) Loyalty[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) – (41) (No change.)

                 (42) Special Access Permit — A department-permit that allows access to a non-hunting person on public lands during authorized activities.[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) – (49) (No change.)

        §65.193. Access Permit Required and Fees.

                 (a) (No change.)

                 (b) Annual Public Hunting (APH) Permit and Limited Public Use (LPU) Permit.

                         (1) – (3) (No change.)

                                  (4) The permits required under paragraphs (1) — (3) of this subsection are not required for:

                                          (A) persons who enter Caddo Lake Wildlife Management Area and do not hunt or enter upon the land;

                                          (B) persons who enter and hunt waterfowl within the Bayside Marsh Unit [of Matagorda Island State Park and] Wildlife Management Area; or

                                          (C) persons who enter Zone C of the Guadalupe River Unit of the Guadalupe Delta Wildlife Management Area and do not hunt or fish.

                         (5) – (6) (No change.)

                 [(c) Regular Permit — A regular permit is issued on a first come-first served basis at the hunt area on the day of the scheduled hunt with the department reserving the right to limit the number of regular permits to be issued.]

                 [(d) Special Permit — A special permit is issued to an applicant selected in a drawing.]

                 [(e) Special Access Permit — A special access permit is issued to an applicant selected in a drawing.]

                 (f) Mentored Hunting Permit — Permits issued under this subsection shall be available on a first-come, first-served basis for use on designated units of public hunting lands at designated times. A person may participate in a designated hunt under a mentored hunting permit only if the person has completed the mandatory mentored hunter workshop and has been authorized by the department to participate in hunt activities. A person who participates in a mentored hunt under a mentored hunting permit must be accompanied by a designated mentor.

                 (c)[(g)] Permits for hunting wildlife resources on public hunting lands shall be issued by the department to applicants by means of a fair method of distribution subject to limitations on the maximum number of permits to be issued.

                 (d)[(h)] The department may implement a system of issuing special permits [or special access permits] that gives preference to those applicants who have applied previously but were not selected to receive a permit.

                 (e)[(i)] Application fees.

                         (1) The department may charge a non-refundable fee, which may be required to accompany and validate an individual’s application in a drawing for a special [hunting] permit [or special access permit].

                         (2) The application fee for a special [hunting] permit [or special access permit] is waived for a person under 17 years of age; however, the youth must apply in conjunction with an authorized supervising adult to whom an application fee is assessed, except as provided in paragraphs (3) and (4) of this subsection.

                         (3) The application fee for a special permit [or special access permit] is waived for an adult who is making application to serve as a non-hunting authorized supervising adult for a youth in a youth-only drawn hunt category.

                         (4) Persons under 17 years of age may be disqualified from applying for special package hunts or may be assessed the application fee.

                         (5) The application fee for a special permit [or special access permit] is waived for on-site applications made under standby procedures at the time of a hunt.

                         (6) Incomplete or incorrectly completed applications will be disqualified.

                 (f)[(j)] Legal animals to be taken by special or regular permit shall be stipulated on the permit.

                 (g)[(k)] Only one special[, special access,] or regular permit fee will be assessed in the event of concurrent hunts for multiple species, and the fee for the legal species having the most expensive permit will prevail.

                 (h)[(l)] Any applicable special[, special access,] or regular permit fees will be waived for youth under the supervision of a duly permitted authorized supervising adult.

                 (i)[(m)] Any applicable regular permit fees will be waived for persons possessing an APH permit.

                 (j)[(n)] Certain hunts may be conducted totally or in part by regular permit. It is an offense to fail to comply with established permit requirements specifying whether a regular permit is required of all participants or required only of adult participants who do not possess an APH permit.

                 (k)[(o)] Any applicable regular permit fees for authorized activities other than hunting or fishing will be waived for persons possessing an APH permit or an LPU permit.

                 (l)[(p)] An access permit applies only to the individual to whom the permit is issued, and neither the permit nor the rights granted thereunder are transferable to another person.

                 (m)[(q)] A person who fails to obey the conditions of a permit issued under this subchapter commits an offense.

        §65.197. Reinstatement of Loyalty[Preference] Points. Accrued loyalty[preference] points will be reinstated in the concerned hunt category for a selected applicant only if:

                 (1) payment of hunt permit fees has been made, but the scheduled hunt is unable to be conducted in its entirety or is canceled at the discretion of the department; or

                 (2) payment of hunt permit fees has been made, but participation in the scheduled hunt is not possible due to deployment as a result of service in the armed forces of the United States[the selected applicant was assigned a hunt category, hunt area, or hunt period other than was indicated on the application and does not participate in the hunt].

        §65.199. General Rules of Conduct.

                 (a) – (c) (No change.)

                 (d) Hunting with Dogs.

                         (1) Dogs may be possessed and used to hunt animals and birds on public hunting lands only as provided:

                                  (A) in the "Legal Game Legend" provided for each unit of public hunting lands in the department publication entitled "Map Booklet for Public Hunting Lands;" or

                                  (B) by executive order published on the department’s official website[in the case of drawn hunts, in the department publication entitled "Applications for Drawings on Public Hunting Lands."]

                         (2) It is an offense for any person to use a dog to hunt a bird or animal on public hunting lands except as authorized:

                                  (A) in the "Legal Game Legend" provided for each unit of public hunting lands in the department publication entitled "Map Booklet for Public Hunting Lands" or

                                  (B) by executive order published on the department’s official website [in the "Applications for Drawings on Public Hunting Lands."]

        §65.204. Recreational Use of Wildlife Management Areas.

                 (a) Hunting is allowed on wildlife management areas and public hunting lands only as provided in this subchapter.

                 (b) – (d) (No change.)

        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