TPWD: August 23, 2018 Commission Meeting Agenda

August 22-23, 2018, Commission Meeting Agenda

Work Session

Commission Agenda Items

May 22-24, 2018, Transcripts

Commission Agenda Item No. 5
Presenter: Clayton Wolf

Action
Air Gun and Arrow Gun Rules and Hunter Education for Air Gun and Arrow Gun Rules
Recommended Adoption of Proposed Changes
August 23, 2018

I. Executive Summary: The staff seeks adoption of proposed amendments to the Statewide Hunting and Fishing Proclamation. The proposed amendments would:

Make air guns lawful for the take of alligator, big game species (deer, pronghorn, bighorn sheep, javelina), turkey, and fur-bearing animals, provided the air guns are pre-charged pneumatics and meet certain ballistic requirements;
Make arrow guns lawful for the take of alligators (in “non-core” counties”), game animals, and upland (i.e., non-migratory game birds – quail, pheasant, chachalaca) game birds, and fur-bearing animals, provided the arrow guns are pre-charged pneumatics and arrows/bolts conform to current rules for archery equipment;
Establish hunter education requirements for persons hunting by means of pneumatic weapons; and
Simplify standards for archery equipment and air guns used to take squirrel.

II. Discussion: At the March 22, 2018 Texas Parks and Wildlife Commission (Commission) meeting, the Commission adopted the proposed 2018-19 Statewide Hunting Proclamation, which among other things included proposed amendments to make pneumatic weapons lawful for the take of alligators, game animals, and certain game birds. A similar proposal making pneumatic weapons lawful for the take of fur-bearing animals was also deliberated. Following the deliberation, the Commission Chairman requested that all provisions involving pneumatic weapons be reassessed in the interests of developing a more nuanced understanding of the issue before finalization of any rules. Staff presented an amended proposal at the May 24, 2018 Commission meeting in Lubbock, Texas and was directed to refine the proposal to include more thorough ballistic performance standards. The resultant proposed amendments (located at Exhibits A and B) were subsequently published in the July 20, 2018 issue of the Texas Register (43 TexReg 4821) for public comment. A summary of public comment on the proposed rules will be presented at the time of the hearing.

III. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to §§65.3 and 65.11, concerning the Statewide Hunting Proclamation, and an amendment to §65.375, concerning the Statewide Fur-bearing Animal Proclamation, with changes as necessary to the proposed text as published in the July 20, 2018, issue of the Texas Register (43 TexReg 4821).”

Attachments – 2

Exhibit A – Proposed Amendments to the Statewide Hunting Proclamation
Exhibit B – Proposed Amendments to the Statewide Fur-bearing Animal Proclamation

Commission Agenda Item No. 5
Exhibit A

2018-2019 STATEWIDE HUNTING PROCLAMATION
LAWFUL MEANS
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §65.3 and §65.11, concerning the Statewide Hunting Proclamation.

In response to a petition for rulemaking, and after witnessing field demonstrations, the department published a proposal in the February 16, 2018, issue of the Texas Register (43 TexReg 827) to make air guns of .30 caliber or larger and arrow guns (pneumatic weapons that fire an arrow or bolt) lawful means of take for alligators, big game species (deer, pronghorn, desert bighorn sheep, javelina), and turkey. The proposed amendment also would have made lawful the use of air guns of .177 caliber and larger to take non-migratory game birds other than turkey (chachalaca, pheasant, and quail, hereafter referred to collectively as “upland game birds other than turkey”). Following the publication of that proposed rulemaking, the department became aware of concerns that the proposal did not contain technical delimitations sufficient to provide reasonable assurance that making such weapons lawful would not result in avoidable wounding loss. Therefore, that proposal is being withdrawn and replaced with this proposal. The department notes that the February 16, 2018 proposed rulemaking also contained changes unrelated to pneumatic weapons; those changes are also contained in this rulemaking.

As noted previously, the department received a petition for rulemaking requesting that air guns and arrow guns be designated as lawful means. After conducting a review of ballistic data for a variety of pneumatic (gas-powered) weapons, the department has determined that such means, subject to certain requirements, can be used to take wildlife resources without causing depletion or waste. Parks and Wildlife Code, §61.005, defines depletion as “the reduction of a species below its immediate recuperative potential by any cause” and waste as “the failure to provide for the regulated harvest of surplus wildlife resources when that harvest would allow, promote, or optimize a healthy and self-sustaining population of a species.”

The amendment to §65.3, concerning Definitions, would add new definitions for “air gun” and “arrow gun.” Because the proposed amendment to §65.11, concerning Lawful Means, would allow the take of alligators, big game species, and turkey by means of air guns and arrow guns that are pre-charged pneumatics, the proposed amendment would define “pre-charged pneumatic” as “an air gun or arrow gun for which the propellant is supplied or introduced by means of a source that is physically separate from the air gun or arrow gun.” The proposed amendment would also define “air gun” as “a device that fires a bullet solely by the use of unignited compressed gas as the propellant“ and “arrow gun” as “a device that propels an arrow or bolt solely by the use of unignited compressed gas as the propellant.” The definitions are necessary to provide meanings for specialized terms in order to prevent ambiguity and enhance compliance and enforcement.

As noted previously, the proposed amendment to §65.11, concerning Lawful Means, would alter current language to make air guns, with certain restrictions, lawful means for the take of alligators, big game species (deer, pronghorn, desert bighorn sheep, javelina), and upland game birds. With respect to air guns used to take alligators, big game species, and turkey, the proposed amendment would require all air guns and arrow guns to be pre-charged pneumatics (i.e., “break-action, “pump action,” and “canister” charging systems would be unlawful) and, for air guns, fire a minimum projectile size of .30-caliber with a minimum bullet weight of 150 grains fired at a minimum muzzle velocity of 800 feet per second, or any combination of bullet weight and muzzle velocity producing a minimum muzzle energy of 215 foot-pounds. It is necessary to require that air guns and arrow guns used to take alligators, big game species, and turkey be pre-charged pneumatics because department investigations revealed that other methods of charging are insufficient to produce the minimum ballistic performance necessary to reliable kill larger animals, especially at longer distances. Similarly, an analysis of ballistic performance data indicates that the .30-caliber minimum bullet size, 150-grain minimum bullet weight fired at a minimum muzzle velocity of 800 feet per second (or any combination of bullet weight and muzzle velocity producing a minimum muzzle energy of 215 foot-pounds) are the minimum specifications necessary to achieve lethality in most circumstances, and probably in all circumstances in which the distance to the target and placement of the shot are optimal. With respect to the take of alligators, air guns and arrow guns would not be lawful for the take of alligators in the 22 “core” counties (those counties constituting the prime historical habitat for the American alligator in Texas, where commercial hunting is viable and the department engages in significant biological monitoring of the resource and manages harvest through tag issuance to landowners), but would be lawful for the take of alligators in all other counties. Under current alligator harvest regulations, all taking devices for alligators in “core” counties must be equipped with at least 300-lb test line to prevent alligators from being lost; therefore, air guns and arrow guns would be prohibited in “core” counties because they are not so equipped. The proposed amendment would also allow air guns to be used to hunt non-migratory game birds other than turkey, stipulating a minimum bullet size of .177 caliber and a minimum muzzle velocity of 600 feet per second. Air guns used to take squirrels and upland game birds other than turkey would not be required to be charged externally.

The proposed amendment also would eliminate language regarding the legal dimensions and characteristics of broadhead hunting points and crossbow minimum requirements. Under current rule, crossbows are required to have a minimum of 125 pounds of pull, a mechanical safety, a stock of not less than 25 inches in length, and use broadheads that are at least 7/8-inch in width upon impact, with a minimum of two cutting edges (mechanical broadheads are required to open upon impact and when open be a minimum of 7/8-inch in width). The current legal requirements for bolts also apply to broadhead hunting points used with lawful archery equipment. The department has determined that with the exception of the requirement for a mechanical safety, such requirements are archaic, difficult to enforce, and unnecessary, reasoning that because hunters are unlikely to use taking devices that are inefficient or incapable of achieving desired outcomes, there is not a need to prescribe the particulars of crossbows or broadhead points by rule. The department also reasons that simplifying the rules might remove barriers to participation.

Additionally, the proposed amendment would remove the requirement that air guns used to take squirrel be designed to be fired from the shoulder. The department has determined that the requirement is not necessary.

The proposed amendment to §65.11 also would nonsubstantively reword paragraph (1)(A), which provides for the use of silencers, and remove a reference to “wildlife resources of this state” and replace it with a reference to “alligators, game animals, and game birds” because those are the wildlife resources regulated under the subchapter.

Finally, the proposed amendment would require persons born after September 1, 1971 who hunt by means of air guns or arrow guns to have completed a department-approved hunter education course. Under the provisions of Parks and Wildlife Code, §42.014, the department is authorized to require persons who were born after September 1, 1971 to complete a hunter education course in order to hunt by means of firearm, lawful archery equipment, or crossbow. The hunter education program has been an unqualified success in Texas, and has resulted in a drastic reduction in hunting accidents, injuries, and fatalities. The department believes it is prudent to require persons who hunt by means of air guns and arrow guns to receive the same hunter education training as persons who hunt with firearms, lawful archery equipment, or crossbows.

2. Fiscal Note.

Clayton Wolf, Wildlife Division 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 or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

Mr. Wolf 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 the dispensation of the agency’s statutory duty to protect and conserve the resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

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

(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 effect on small businesses, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. 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 rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest wildlife resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

(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 rules as proposed will not impact local economies.

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

(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.

(F) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The ruled as proposed, if adopted, will:

(1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

(3) not result in a need for additional General Revenue funding;

(4) not affect the amount of any fee;

(5) not create a new regulation;

(6) relax an existing regulation (by making arrow guns and air guns lawful means of take);

(7) neither increase nor decrease the number of individuals subject to regulation; and

(8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, email: Mitch.Lockwood@tpwd.texas.gov or via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

The proposed amendments affect Parks and Wildlife Code, Chapter 61.

§65.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this chapter shall have the meanings assigned in the Texas Parks and Wildlife Code.

(1) Arrow gun—A device that fires an arrow or bolt solely by the use of unignited compressed gas as the propellant.

(2) Air gun— A device that fires a bullet solely by the use of unignited compressed gas as the propellant.

(3)[(1)] Alligator gig — A pole or staff equipped with at least one of the following:

(A) immovable prongs;

(B) two or more spring-loaded grasping arms; or

(4)[(2)] Alligator hide tag (hide tag) — A department-issued tag required by federal law pursuant to the Convention on International Trade in Endangered Species (CITES) to be affixed to all alligators taken in the state. All alligator hide tags issued by the department are CITES tags.

(5)[(3)] Annual bag limit — The quantity of a species of a wildlife resource that may be taken from September 1 of one year to August 31 of the following year.

(6)[(4)] Antlerless deer — A deer having no hardened antler protruding through the skin.

(7)[(5)] Antler point — A projection that extends at least one inch from the edge of a main beam or another tine. The tip of a main beam is also a point.

(8)[(6)] Bait — Something used to lure any wildlife resource.

(9)[(7)] Baited area — Any area where minerals, vegetative material or any other food substances are placed so as to lure a wildlife resource to, on, or over that area.

(10)[(8)] Bearded hen — A female turkey possessing a clearly visible beard protruding through the feathers of the breast.

(11) Pre-charged pneumatic— An air gun or arrow gun for which the propellant is supplied or introduced by means of a source that is physically separate from the air gun or arrow gun.

(12)[(9)] Buck deer — A deer having a hardened antler protruding through the skin.

(13)[(10)] Daily bag limit — The quantity of a species of a wildlife resource that may be lawfully taken in one day.

(14)[(11)] Day — A 24-hour period of time that begins at midnight and ends at midnight.

(15)[(12)] Deer population data — Results derived from deer population surveys and/or from systematic data analysis of density or herd health indicators, such as browse surveys or other scientifically acceptable data, that function as direct or indirect indicators of population density.

(16)[(13)] Final processing — The cleaning of a dead wildlife resource for cooking or storage purposes. For a deer or antelope carcass, the term includes the processing of the animal more than by quartering.

(17)[(14)] Fully automatic firearm — Any firearm that is capable of firing more than one cartridge in succession by a single function of the trigger.

(18)[(15)] Gig — Any hand-held shaft with single or multiple points.

(19)[(16)] Landowner — Any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent.

(20)[(17)] Lawful archery equipment — Longbow, recurved bow, and compound bow.

(21)[(18)] License year — The period of time for which an annual hunting license is valid.

(22)[(19)]Muzzleloader — Any firearm that is loaded only through the muzzle.

(23)[(20)] Permanent residence — One’s domicile. This does not include a temporary abode or dwelling such as a hunting/fishing club, or any club house, cabin, tent, or trailer house used as a hunting/fishing club, or any hotel, motel, or rooming house used during a hunting, fishing, pleasure, or business trip.

(24)[(21)] Possession limit — The maximum number of a wildlife resource that may be lawfully possessed at one time.

(25)[(22)] Silencer or sound-suppressing device — Any device that reduces the normal noise level created when the firearm is discharged or fired.

(26)[(23)] Spike-buck deer — A buck deer with no antler having more than one point.

(27)[(24)] Unbranched antler — An antler having no more than one antler point.

(28)[(25)] Unbranched antlered deer — A buck deer having at least one unbranched antler.

(29)[(26)] Upper-limb disability — A permanent loss of the use of fingers, hand or arm in a manner that renders a person incapable of using a longbow, compound bow or recurved bow.

(30)[(27)] Wildlife resources — Alligators, all game animals, and all game birds.

(31)[(28)] Wounded deer — A deer leaving a blood trail.

§65.11. Lawful Means. It is unlawful to hunt alligators, game animals or game birds[any of the wildlife resources of this state] except by the means authorized by this section, and as provided in §65.19 of this title (relating to Hunting Deer with Dogs).

(1) Firearms.

(A) Except as may be specifically restricted elsewhere in this chapter, it [It] is lawful to hunt alligators, game animals, and game birds with any legal firearm (including a muzzleloader)[including muzzleloading firearms, and including a firearm equipped with a silencer, except as specifically restricted in this section].

(B) It is lawful to hunt by means of a legal firearm equipped with a silencer; however, nothing [Nothing] in this paragraph shall be construed to relieve any person of compliance with any other federal, state, or local laws governing the possession or use of firearm silencers.

(2) Archery.

(A) – (B) (No change.)

(C) While hunting turkey and all game animals other than squirrels by means of longbow, compound bow, or recurved bow the arrow must be equipped with a broadhead hunting point [at least 7/8-inch in width upon impact, with a minimum of two cutting edges. A mechanical broadhead must begin to open upon impact and when open must be a minimum of 7/8-inch in width].

(D) (No change.)

(3) Crossbow — Special Provisions.

(A) (No change.)

(B) When hunting turkey and all game animals other than squirrels by means of crossbow[:]

[(i) [he crossbow must have a minimum of 125 pounds of pull;]

(i)[(ii)] the crossbow must have a mechanical safety; and

[(iii) the crossbow stock must be not less than 25 inches in length; and]

(ii)[(iv)] the bolt must conform with paragraph (2)(B) and (C) of this section.

(4) Air guns. Except as otherwise specifically provided elsewhere in this chapter, it[It] is lawful to hunt alligators, game animals, and non-migratory game birds with an air gun; provided:

(A) when used to hunt alligator, deer, pronghorn antelope, bighorn sheep, javelina, or turkey, the air gun:

(i) is a pre-charged pneumatic; and

(ii) fires a projectile of at least .30 caliber in diameter; and

(iii) fires a bullet of least 150 grains in weight at a minimum muzzle velocity of 800 feet per second or any combination of bullet weight and muzzle velocity that produces a muzzle energy of at least 215 foot-pounds.

(B) when used to hunt squirrel, pheasant, quail, or chachalaca, the air gun fires a projectile of at least .177 caliber (4.5mm) in diameter producing a muzzle velocity of at least 600 feet per second.

(C) In Angelina, Brazoria, Calhoun, Chambers, Galveston, Hardin, Jackson, Jasper, Jefferson, Liberty, Matagorda, Nacogdoches, Newton, Orange, Polk, Refugio, Sabine, San Augustine, San Jacinto, Trinity, Tyler and Victoria counties, alligators may not be hunted by means of air guns. In all other counties, alligators may be hunted by means of air guns on private property, including private waters, but may not be hunted by means of air guns from, on, in, across, or over public water.

(D) Alligators lawfully caught on a taking device may be dispatched by means of air guns in all counties.

(E) No person whose date of birth is after September 1, 1971 may hunt a wildlife resource by means of an air gun unless that person has successfully completed a department-approved hunter education course or is otherwise in compliance with the applicable requirements of §51.80 of this title (relating to Hunter Education Course and Instructors)[squirrels with an air gun, provided:]

[(A) the gun is designed to be fired from the shoulder;]

[(B) the gun operates by using the force of a spring, air, or non-ignited compressed gas to expel a projectile;]

[(C) the muzzle velocity of the gun is at least 600 feet per second; and]

[(D) the projectile is at least .177 caliber (4.5 mm) in diameter.]

(5) Arrow guns. It is lawful to use an arrow gun to take:

(A) alligators in the counties not listed in subparagraph (D) of this paragraph; however, the provisions of paragraph (7) of this section apply; and

(B) game animals and upland game birds; however, the arrow must conform with paragraph (2)(B) and (C) of this section.

(C) An arrow gun that is not a pre-charged pneumatic is unlawful.

(D) In Angelina, Brazoria, Calhoun, Chambers, Galveston, Hardin, Jackson, Jasper, Jefferson, Liberty, Matagorda, Nacogdoches, Newton, Orange, Polk, Refugio, Sabine, San Augustine, San Jacinto, Trinity, Tyler and Victoria counties, alligators may not be hunted by means of arrow guns. In all other counties, alligators may be hunted by means of arrow guns on private property, including private waters, but may not be hunted by means of arrow guns from, on, in, across, or over public water.

(E) Alligators lawfully caught on a taking device may be dispatched by means of arrow guns in all counties.

(F) No person whose date of birth is after September 1, 1971 may hunt a wildlife resource by means of an arrow gun unless that person has successfully completed a department-approved hunter education course or is otherwise in compliance with the applicable requirements of §51.80 of this title (relating to Hunter Education Course and Instructors).

(6)[(5)] Falconry. It is lawful to hunt any game bird or game animal by means of falconry under the provisions of Subchapter K of this chapter (relating to Raptor Proclamation).

(7)[(6)] Alligator.

(A) Legal devices for taking alligators in the wild are as follows:

(i) – (iv) (No change.)

(v) lawful firearms, air guns, and arrow guns in counties where take by firearm, air gun, or arrow gun is allowed.

(B) A line of at least 300-pound test shall be securely attached to all taking devices other than firearms, air guns or arrow guns used to hunt alligators. Except as provided in this subsection, hook-bearing lines must be attached to a stationary object capable of maintaining a portion of the line above water when an alligator is caught on the line. A line attached to an arrow, snare, or gig must have a float attached when used to take alligators. The float shall be no less than six inches by six inches by eight inches, or, if the float is spherical, no less than eight inches in diameter.

(8)[(7)] Use of laser sighting devices. All provisions concerning hunter education requirements apply to persons hunting with laser sighting devices under this paragraph.

(A) (No change.)

(B) Use of laser sighting devices by persons who are physically disabled.

(i) A person with a physical disability may use a laser sighting device during lawful hunting hours in open seasons when assisted by a person who:

(I) is not legally blind or a person with a physical disability that renders the person incapable of using a traditional [firearm] sighting device;

(II) has a hunting license; and

(III) is at least 13 years of age.

(ii) A person who uses a laser sighting device under the provisions of this subparagraph must have in possession a signed statement from a physician or optometrist certifying that the person is incapable of using a traditional [firearm] sighting device.

(9)[(8)] Special Provisions.

(A) – (B) (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

Commission Agenda Item No. 5
Exhibit B

STATEWIDE FURBEARING ANIMAL PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §65.375, concerning Open Seasons; Means and Methods. The proposed amendment would add air guns and arrow guns as lawful means for taking furbearing animals. In another proposed rulemaking published elsewhere in the issue, the department proposes to allow the take of alligators, big game species, and non-migratory game birds by means of pneumatic (air-powered) weapons. The proposed amendment to §65.375 is necessary to provide consistency and prevent confusion by allowing the use of air guns and arrow guns to take furbearing animals.

In response to a petition for rulemaking, subsequent field demonstrations, and additional review of ballistic performance characteristics, the department has determined that air guns of .30 caliber and arrow guns, provided they are pre-charged from an external propellant source, are capable of reliably killing furbearing animals and therefore should be lawful means of take for those species. It is necessary to require that air guns and arrow guns used to take furbearing animals be charged from an external source (“pre-charged pneumatics”) because department investigations revealed that other methods of charging (i.e., “break-action, “pump action,” and “canister” charging systems) are insufficient to produce the minimum ballistic performance necessary to reliably kill furbearers, especially at longer distances. Similarly, an analysis of ballistic performance data indicates that the .30-caliber minimum bullet size is the minimum specification necessary to achieve lethality in most circumstances, and probably in all circumstances in which the distance to the target and placement of the shot are optimal.

2. Fiscal Note.

Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rule as proposed is 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. Wolf 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 dispensation of the agency’s statutory duty to protect and conserve the furbearing animal resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

There will be no adverse economic effect on persons required to comply with the rule as proposed.

The department has determined that the proposed rule regulates various aspects of recreational license privileges that allow individual persons to pursue and harvest wildlife resources in this state and therefore does not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

(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.

(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.

(F) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will:

(1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

(3) not result in a need for additional General Revenue funding;

(4) not affect the amount of any fee;

(5) will not create a new regulation;

(6) relax an existing regulation (by additional lawful means for taking furbearing animals);

(7) neither increase nor decrease the number of individuals subject to regulation; and

(8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

Comments on the proposal may be submitted to Shaun Oldenburger (small game and upland birds) at 512-389-4778, email: shaun.oldenburger@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, §71.002, which authorizes the commission to regulate the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of fur-bearing animals and the means, methods, and manner that are, and places in which it is, lawful to take or possess fur-bearing animals, pelts, or carcasses.

The proposed amendment affects Parks and Wildlife Code, Chapter 71.

6. Rule Text.

§65.375. Open Seasons; Means and Methods.

(a) – (b) (No change.)

(1) Only the following means and methods are legal for taking fur-bearing animals:

(A) – (G) (No change.)

(H) electronic or hand-held calls; [and]

(I) artificial light;

(J) pre-charged pneumatic arrow guns (as defined by Subchapter A of this chapter); and

(K) pre-charged pneumatic air guns ( as defined by Subchapter A of this chapter) of .30 caliber or larger.

(2) (No change.)

(3) No person whose date of birth is after September 1, 1971 may hunt a furbearing animal by means of an air gun or arrow gun unless that person has successfully completed a department-approved hunter education course or is otherwise in compliance with the applicable requirements of §51.80 of this title (relating to Hunter Education Course and Instructors).

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