Commission Agenda Item No. 2
Presenter: Justin Dreibelbis

Action
Public Lands Proclamation
Recommended Adoption of Proposed Changes
May 22, 2019

I.      Executive Summary:With this item, the staff seeks adoption of proposed amendments to the Public Lands Proclamation. The proposed amendments would make changes to the rules of public conduct regarding the possession, display, and use of pneumatic (air-powered) weapons on public hunting lands.

II.     Discussion: Under Texas Parks and Wildlife Code chapter 81, subchapter E, the Texas Parks and Wildlife Commission (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. Texas Parks and Wildlife Code chapter 12, subchapter A, provides that a tract of land purchased primarily for a purpose authorized by the code may be used for any authorized function of the Texas Parks and Wildlife Department (TPWD) “if the 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.

In 2018, the Commission adopted regulations making certain pneumatic weapons lawful for the take of game animals and non-migratory game birds. The current regulations regarding the possession and display of weapons on public hunting lands do not address pneumatic weapons. The proposed amendments located in Exhibit A would effect the necessary changes.

The staff was authorized to publish the proposed rules in the Texas Register for public comment at the March 19, 2019 Commission Work Session meeting. Those rules were published in the April 19, 2019, issue of the Texas Register (44 TexReg 1970). A summary of public comment will be presented at the meeting.

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Commission Agenda Item No. 2
Exhibit A

PUBLIC LANDS PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§65.199, 65.201, and 65.203, concerning the Public Lands Proclamation. The proposed amendments would address the possession, display, and use of pneumatic (air-powered) weapons on public hunting lands.

        In 2018 the Texas Parks and Wildlife Commission made certain pneumatic weapons (arrow guns and air guns, subject to ballistic restrictions) lawful for the take of game animals and non-migratory birds. In the process of reviewing the potential implications of that action upon other department regulations, the department determined that because the current rules governing the use of public hunting lands are silent on the subject of arrow guns and air guns, modification was necessary with respect to the possession, display, and use of such weapons. The department believes that it is prudent to include arrow guns and air guns in all regulations governing the possession, display, and use of weapons generally, which is necessary for efficient enforcement activities as well as the safety of hunters and the public.

        The proposed amendment to §65.199, concerning General Rules of Conduct, would prohibit the possession of arrow guns and air guns on public hunting lands except for persons authorized by the department to hunt or conduct research and commissioned law enforcement officers or employees in the performance of their duties.

        The proposed amendment to §65.201, concerning Motor Vehicles, would make it unlawful for any person to possess a loaded arrow gun or air gun in or on a vehicle, except as may be otherwise provided (e.g., disabled hunters).

        The proposed amendment to §65.203, concerning Hunter Safety, would require hunters using an arrow gun or air gun to comply with provisions regarding the wearing of fluorescent orange material, the discharge of weapons in certain areas, and the display of weapons.

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 clear regulations governing the possession, display, and use of pneumatic weapons on public hunting lands.

        (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, 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 such entities. 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. 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, micro-businesses, or rural communities. 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.

        (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) will expand existing regulations (by including arrow guns and air guns in the effectiveness of current rules) but not limit or repeal an existing regulation;

                 (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 proposed rule may be submitted to Justin Dreibelbis, email: justin.dreibelbis@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 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.

        §65.199. General Rules of Conduct.

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

                         (c) It is unlawful for any person to:

                                  (1) (No change.)

                                  (2) possess a firearm, archery equipment, arrow gun, air gun, or any other device for taking wildlife resources on public hunting lands, except for persons authorized by the department to hunt or conduct research on the area, commissioned law enforcement officers, and department employees in performance of their duties;

                                  (3) camp or construct an open fire anywhere other than in a designated campsite. On the Alabama Creek, Bannister, Caddo, Moore Plantation, and Sam Houston National Forest WMAs, this restriction applies only during the period from the day prior to the opening of the archery deer season through the day following the close of the general deer season;

                         (4) – (19) (No change.)

                  (d) (No change.)

        §65.201. Motor Vehicles.

                 (a) (No change.)

                 (b) It is unlawful to hunt any wildlife resource from a motor vehicle, motor-driven land conveyance, or possess a loaded firearm, arrow gun, or air gun in or on the vehicle, except as provided for a disabled person.

                 (c) A disabled person may possess a loaded firearm, arrow gun, or air gun in or on a motor vehicle while hunting, [and may hunt from a motor vehicle except] only paraplegics and single or double amputees of legs may hunt migratory birds from a motor vehicle,] provided the motor vehicle is not in motion, the engine is not running, and the motor vehicle is not located on a designated road, designated vehicle parking area, or designated campground. Only paraplegics and single or double amputees of legs may hunt migratory birds from a motor vehicle.

                 (d) – (e) (No change.)

        §65.203. Hunter Safety.

                 (a) It is an offense if a person is within a hunt area during daylight hours at a time when hunting with firearms, arrow guns, or air guns is permitted and fails to visibly wear:

                         (1) – (2) (No change.)

                 (b) (No change.)

                 (c) It is an offense to possess a loaded firearm, arrow gun, or air gun in or on a motor vehicle, except as provided in §65.201(c) of this title (relating to Motor Vehicles) for a disabled person.

                 (d) It is an offense to possess a loaded firearm, arrow gun, or air gun within a designated campsite, vehicle parking area, boat launching facility, or departmental check station.

                 (e) It is an offense to discharge a firearm, [or] archery equipment, arrow gun, or air gun from, onto, along, or across a designated road or designated campsite.

                 (f) It is an offense to use or display a firearm, arrow gun, air gun, or other device in an obviously unsafe or threatening manner.

        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