PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 180.3 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, section 11-0303
Subject:
Definition of firearms.
Purpose:
To allow pellet rifles for some hunting.
Text of final rule:
Section 180.3 of 6 NYCRR is repealed and a new section 180.3 of 6 NYCRR adopted as follows:
Section 180.3. Definition and use of firearms, guns, and airguns.
For the purposes of the Fish and Wildlife Law and this Title:
Subdivision (a) of 6 NYCRR section 180.3 is repealed and a new subdivision (a) and (b) of 6 NYCRR section 180.3 added:
(a) The terms "firearm" or "gun" shall mean any rifle, pistol, shotgun or muzzleloading firearm which by force of gunpowder, or an airgun as defined in subdivision (b), that expels a missile or projectile capable of killing, wounding or otherwise inflicting physical damage upon fish, wildlife or other animals.
(b) The term "airgun" shall mean any implement which by the force of a spring, air or other non-ignited compressed gas expels a missile or projectile and has a rifled or smooth barrel, using ammunition no smaller than.17 caliber, producing projectile velocities of not less than 600 feet per second. For the purposes of the Fish and Wildlife Law, an implement meeting the above specifications shall be considered a firearm or gun, and may be used to take protected wildlife whenever such protected wildlife may legally be taken with a rimfire rifle.
Subdivision (b) and (c) of 6 NYCRR section 180.3 are renumbered subdivision (c) and (d), respectively.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 180.3(a).
Text of rule and any required statements and analyses may be obtained from:
Gordon R. Batcheller, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4754, (518) 402-8885, email: wildliferegs@gw.dec.state.ny.us
Additional matter required by statute:
A programmatic environmental impact statement is on file with the Department of Environmental Conservation.
Revised Regulatory Impact Statement
1. Statutory authority:
Section 11-0303 of the Environmental Conservation Law (ECL) directs the Department of Environmental Conservation (department) to develop and carry out programs that will maintain desirable species in ecological balance, and to observe sound management practices. This directive is to be met with regard to: ecological factors, the compatibility of production and harvest of wildlife with other land uses, the importance of wildlife for recreational purposes, public safety, and protection of private premises. Environmental Conservation Law 11-0303 grants the department authority to efficiently manage fish and wildlife resources of the state. This includes providing appropriate opportunity for hunting, and establishing regulations that provide for responsible hunting practices consistent with the management of wildlife populations. Within this authority, the department regulates the use of firearms for the purposes of implementing the Fish and Wildlife Law (Articles 11 and 13 of the ECL).
2. Legislative objectives:
The legislative objectives behind the statutory provisions listed above are to authorize the department to establish, by regulation, certain basic wildlife management tools, including hunting. Periodically, the department adjusts its hunting regulations in response to changes in hunting technology. By doing so, wildlife management tools are kept up to date.
3. Needs and benefits:
The department proposes to clearly allow the use of airguns for use in hunting (e.g., rabbits and squirrels). The popularity of these guns is growing in New York, largely because of technological advancements, and the relatively low cost of buying and operating an airgun.
Environmental Conservation Law section 11-0901 states that small game may only be taken with a longbow or gun. However, a "gun" is not defined in the ECL or in 6 NYCRR section 180.3 ("Definition of Firearms") so hunters do not have clear legal guidance allowing the use of air powered firearms. The department proposes amending the language of 6 NYCRR section 180.3 to clearly allow the use of airguns for hunting.
Airguns are powered in one of four ways: (1) CO2 cartridges; (2) spring or lever-action to compress air in an internal cylinder; (3) a pneumatic pump to compress air in an internal cylinder; (4) a reservoir charged from an external high pressure tank. Airguns designed for small game fire a "pellet" possessing adequate downrange energy (a product of mass and velocity) fully capable of harvesting small game species. At suitable ranges (up to 50 yards), they are very effective in harvesting small game in a manner comparable to a.22 rimfire rifle. Rimfire rifles are commonly used for hunting squirrels and rabbits.
Airguns are an ideal implement for use by new/young hunters. They are often single shot guns, have virtually no recoil, and they do not have a loud "report." They are also inexpensive to buy and operate. For these reasons, airguns are frequently used in the department's hunter education courses to teach safe gun handling practices, and to develop shooting skills. This proposal would clearly allow the use of these guns for hunting as well.
4. Costs:
None, beyond normal administrative costs.
5. Local government mandates:
There are no local governmental mandates associated with this proposed regulation.
6. Paperwork:
No additional paperwork is associated with this proposed regulation.
7. Duplication:
There are no other regulations similar to this proposal.
8. Alternatives:
The only alternative considered was the "no action" alternative. However, this was rejected because the lack of a clear definition for a "gun" will mean continuing confusion about the interpretation of our current laws and regulations.
9. Federal standards:
There are no federal standards pertaining to the use of airguns.
10. Compliance schedule:
Hunters will be able to comply with this regulation during the 2009-2010 hunting season, and the department will begin notifying interested hunters of the change as soon as the regulation is promulgated. A full explanation of the regulation change will be included in the 2010-2011 Official Guide to Hunting Laws and Regulations
Revised Regulatory Flexibility Analysis
The proposed regulation has no effect on small businesses or local governments. It simply clarifies that air-powered firearms or guns may be used for hunting pursuant to Environmental Conservation Law section 11-0901. Therefore, the department has determined that a Regulatory Flexibility Analysis for Small Businesses and Local Governments is not needed.
Revised Rural Area Flexibility Analysis
The proposed regulation has no effect on rural areas. It simply clarifies that air-powered firearms or guns may be used for hunting pursuant to Environmental Conservation Law section 11-0901. Therefore, the department has determined that a Rural Area Flexibility Analysis is not needed.
Revised Job Impact Statement
The proposed regulation does not affect jobs. It simply clarifies that air-powered firearms or guns may be used for hunting pursuant to Environmental Conservation Law section 11-0901. Therefore, the department has determined that a Job Impact Statement is not needed.
Assessment of Public Comment
The department received comments on the proposal. A summary of the comments and the department's response follow:
Comment:
The threshold of 800 feet per second for pellet velocity is too high and should be lowered to 700 feet per second. Some pellet rifles use a heavier pellet (e.g., .25 caliber) and the higher mass but slower velocity of these projectiles yields suitable down range energy for responsibly harvesting small game species.
Response:
The department agrees, and the revised text of the rule provides for a lower minimum velocity (600 feet per second) in recognition of the availability of airguns that have sufficient down range energy for hunting purposes but lower projectile velocities. From this comment and others, it is clear that manufacturers are designing a wide array of firearms that fire a pellet and are suitable for harvesting small game under suitable conditions (i.e., within a range appropriate for a specific firearm).
Comment:
A person hunting with an airgun should be allowed to hunt closer than 500 feet from a dwelling.
Response:
Environmental Conservation Law (ECL) section 11-0931 does not allow the discharge of a firearm within 500 feet from a dwelling, farm building, school, factory, or church. Airguns, regardless of their velocity, are included in the existing definition of "firearm" for the purpose of the Fish and Wildlife Law (6 NYCRR section 180.3). The revised definition maintains the applicability of this provision for airguns meeting the requirements of implements that may be used to take small game.
Comment:
Airguns should not be defined as a firearm because this would jeopardize the ability of a young person to use a "BB gun." Classifying an airgun as a firearm could potentially jeopardize the use of airguns at shooting ranges by young persons.
Response:
The specific reason for the proposal is to allow the use of airguns for the hunting of small game and upland game birds pursuant to ECL section 11-0901 which restricts the taking of "wild small game and wild upland game birds" to longbows and guns only. The final rule has been clarified to specifically define an "airgun." Specifically, the new definition considers airguns a "firearm or gun" when hunting small game species if the taking of those species is allowed with a rimfire rifle. For example, the department's final rule allows the use of airguns for taking squirrels, rabbits, and ruffed grouse but not pheasants or wild turkey because the ECL prohibits taking pheasants with rimfire ammunition, and department regulations require the use of shotshells for hunting wild turkey. New York's Penal Law Article 265 clearly allows the use of airguns by persons less than 12 years old under prescribed circumstances, and the department's proposal does not alter this fact. The definition of "firearm" in 6 NYCRR section 180.3 is applicable only to the Fish and Wildlife Law (ECL Articles 11 and 13) and regulations adopted under its authority, and in no way is applicable to the Penal Law or any other laws.
Comment:
The present definitions of firearms and guns already provides for sufficient clarity to allow for hunting with all airguns without any new definitions. The present definition also allows hunters to use their discretion in determining what type of airgun to use.
Response:
The department has proposed this regulation to define for the purpose of implementing the Fish and Wildlife Law to assure that there was no ambiguity on their use for hunting. Because the ECL restricts the hunting of small game and upland game birds to guns and longbows, and because "guns" were not previously defined, the department determined that the use of airguns was not clearly lawful. The proposal provides this clarity and in future editions of the department's hunting guide, there will be clear statements that airguns are lawful for hunting small game and certain species of upland game birds. In the final wording of the rule, the department has changed the reference to a specific projectile velocity from 800 to 600 feet per second to provide hunters with a simple velocity threshold in choosing what type of airgun to use.
Comment:
The proposed amendment contains language that arbitrarily restricts the use of traditional air-guns. Specifically, the requirement for a minimum velocity precludes several legitimate types of airgun, and the reference to "rifling" unnecessarily restricts the use of smooth bore guns.
Response:
The department agrees, and the minimum velocity requirement has been changed to 600 feet per second. The department also agrees that the exclusion of smooth barreled airguns was unnecessarily constraining. The final regulation uses the term "rifled or smooth barrel" in the definition of an "airgun."
Comment:
The new proposed definition does not allow for the use of blowguns for small game hunting.
Response:
This is correct. The department does not have the authority to allow blowguns for hunting. The ECL specifically states that only longbows and guns may be used for hunting small game and upland game birds. The department is unable to accommodate this comment.
Comment:
The department's proposed definition of "firearm" and "gun" differs from the approach taken in the New York State Penal Law. The department should avoid potential conflicts with the Penal Law in broadening the definition of a "firearm" to include an airgun.
Response:
The proposed regulation simply addresses the use of airguns for "the purposes of the Fish and Wildlife Law" (Articles 11 and 13 of the ECL), and has no consequences for implementing and enforcing the Penal Law. The regulation simply clarifies that airguns, as defined, may be used for hunting small game.
Comment:
The department should make sure that regulations pertaining to public use of specific management areas (e.g., Stewart State Forest and the Albany Pine Bush Preserve) that may be in conflict with the proposed regulation are updated to clearly allow the use of airguns for hunting.
Response:
The department agrees and will work with the regional offices to identify regulations that may need updating or clarification for enforcement purposes.
The department has modified the text to provide greater clarity in the final regulation, and is adopting the regulation as so amended.
