PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
SUBCHAPTER A. STATEWIDE HUNTING AND FISHING PROCLAMATION
DIVISION 1. GENERAL PROVISIONS
The Texas Parks and Wildlife Department (the department) proposes an amendment to §65.11, concerning Lawful Means. The proposed amendment would allow the use of crossbows by all persons during the archery-only season, with an exception related to one county, and allow the use of laser sighting devices by any person with a physical disability that renders the person incapable of using a traditional firearm sighting device, provided the person possesses a physician's or optometrist's statement certifying the extent of the disability.
Under Government Code, §2001.006(b), an agency may adopt a rule in preparation for the implementation of legislation that has become law but has not taken effect. With the passage of House Bill 968 and House Bill 1805 by the 81st Texas Legislature, Regular Session, it is necessary for the department to promulgate rules to implement the provisions of the bills.
Under Parks and Wildlife Code, §43.201(a), no person may hunt deer, turkey, or javelina during an open archery season restricted to longbows, recurved bows, compound bows, or crossbows used by hunters with upper limb disabilities unless the person has acquired an archery hunting stamp. House Bill 968 removes the reference to upper-limb disabilities in connection with the use of crossbows, and makes this applicable in all counties except those in which firearms are not lawful means. The amendment allows any person, regardless of physical ability, to use a crossbow during the archery-only season, provided the person has acquired an archery stamp, except in counties where the lawful means do not allow the use of firearms (current rules prohibit the use of firearms to take deer in Grayson County) Because all deer-hunting opportunity in Grayson County is limited to archery equipment and crossbows only, the archery stamp requirement applies to the harvest of deer at all times.
Under current §65.11, a person may hunt during an archery-open season only by means of "lawful archery equipment," which is defined by §65.3, concerning Definitions, as "longbow, compound bow or recurved bow." However, there is an exception for crossbow use by persons with an upper-limb disability. The proposed amendment would alter the definition of "lawful archery equipment" to include crossbows and eliminate the upper-limb disability requirement. This change, in concert with the provisions of House Bill 968, would provide for the use of crossbows by any person during the archery season in all counties except Grayson County, where use of crossbows at any time to take deer would be restricted to persons with an upper-limb disability.
Current §65.11 also allows a person who is legally blind to use a laser sighting device to hunt game animals and game birds during lawful hunting hours in open seasons, provided the person is assisted by a person who is not legally blind, has a hunting license; and is at least 13 years of age. House Bill 1805 provides for the use of laser sighting devices by persons with a physical disability (defined as "a documented permanent physical disability that renders the person incapable of using a traditional firearm sighting device") to hunt game animals and game birds during lawful hunting hours in open seasons, provided the person possesses a physician's or optometrist's statement certifying the extent of the disability, and is assisted by a person who does not have a physical disability, has a hunting license, and is at least 13 years of age.
The proposed amendment would alter the current rule to incorporate the provisions of House Bill 1805.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years the rule as proposed is in effect, there will be fiscal implications to state or local government as a result of enforcing or administering the rule.
The department estimates that the maximum fiscal implications of the portion of the amendment that would allow crossbows to be used by any person during the archery-only season will be additional revenues of $172,554 per fiscal year. This figure was derived as follows. The department sold approximately 1,040,832 hunting licenses in fiscal year (FY) 2008. Of those persons, approximately 527,279 purchased the archery stamp required for participation in the archery-only season, leaving 513,533 hunting license holders who did not. Of the 512,533 persons who did not purchase an archery stamp, the department estimates that approximately 50 percent are exclusively migratory game bird hunters. The other 50 percent (256,777) hunt deer, turkey and other game that could potentially be hunted with a crossbow. From this population of 256,777 the department estimates that as many as 10 percent would actually hunt with a crossbow (25,677). At $7 per stamp, this represents a maximum net revenue gain to the department $172,554 per fiscal year, less the 4 percent agent fee charged by retailers who sell the stamp and the $0.76 electronic transaction fee charged to the department by the operator of the department's electronic licensing system (approximately $19,515 per FY). There will be no fiscal implications to units of local government as a result of administering or enforcing the amendment as proposed.
The department estimates that there will be no fiscal implications for state or local government as a result of the enforcement or administration of the portion of the amendment allows the use of laser sighting devices by persons with a physical disability.
Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be the provision of additional hunting opportunity.
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. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rule. The rule would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. In particular, the proposed rule would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.
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.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
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.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775, e-mail: robert.macdonald@tpwd.state.tx.us.
The amendment is proposed under Parks and Wildlife Code, §61.054, which requires the commission to specify the means or method that may be used to hunt, take, or possess game animals, game birds, or aquatic animal life.
The proposed amendment affects Parks and Wildlife Code, Chapter 61.
§65.11.Lawful Means.
It is unlawful to hunt 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) (No change.)
(2) Archery.
(A) - (D) (No change.)
(E) Lawful archery equipment and crossbows are
the only lawful means that may be used during [Special]
archery-only seasons [are restricted to lawful archery equipment
only], except as provided in paragraph (3) of this section.
(3) Crossbow. Except for Grayson County, crossbows [
Crossbows] are lawful during archery-only seasons and any
general open season. In Grayson County, no person may use a crossbow
to hunt deer during any season unless the person has [A
person having] an upper-limb disability and has in immediate
possession [may use a crossbow to hunt deer and turkey
during an archery-only season, provided the person has in their immediate
possession] a physician's statement that certifies [
certifying] the extent of the disability. When hunting turkey
and all game animals other than squirrels by means of crossbow:
(A) - (D) (No change.)
(4) - (5) (No change.)
(6) Use of laser sighting devices. All provisions concerning hunter education requirements apply to persons hunting with laser sighting devices under this paragraph.
(A) Use of laser sighting devices by persons who are legally blind.
(i) [(A)] A person who is legally
blind may use a laser sighting device to hunt game animals and game
birds during lawful hunting hours in open seasons, provided the person
is assisted by a person who:
(I) [(i)] is not legally blind;
(II) [(ii)] has a hunting license; and
(III) [(iii)] is at least 13 years of age.
(ii) [(B)] 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
to the effect that the person is legally blind by the standard of
Government Code, §62.104, and must present the statement to any
peace officer or department employee acting within the scope of official
duties.
(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 a person with a physical disability or legally blind;
(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.
[(C) All provisions concerning hunter
education requirements apply.]
(7) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 4, 2009.
TRD-200902230
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: July 19, 2009
For further information, please call: (512) 389-4775