Title of Regulation: 4VAC10-30. Virginia State Forests Regulations (amending 4VAC10-30-170).

Statutory Authority: § 10.1-1101 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 16, 2011.

Agency Contact: Ronald S. Jenkins, Assistant State Forester, Department of Forestry, 900 Natural Resources Drive, Suite 800, Charlottesville, VA 22903, telephone (434) 977-6555, FAX (434) 293-2768, or email ron.jenkins@dof.virginia.gov.

Basis: Section 10.1-1101 of the Code of Virginia provides the Department of Forestry, with the approval of the State Forester, the authority to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1 of the Code of Virginia.

Purpose: The right to bear arms is protected by the second amendment to the Constitution of the United States. Citizens are requesting the department to remove the prohibition against carrying handguns within state forests because they believe this action is necessary to protect their health, safety, and welfare against violent people and wild animals.

The Virginia Citizens Defense League petitioned the Department of Forestry (DOF) for a ruling to amend 4VAC10-30-170 and eliminate the prohibition against both open carried handguns and concealed handguns. DOF completed its response to the petition and began the process of amending its regulation with the intent of removing the prohibition against lawful concealed firearms and continuing the prohibition on open carried firearms. DOF completed the Notice of Intended Regulatory Action (NOIRA) and first public comment stages. DOF received 1,926 comments during the NOIRA stage and 2,409 comments at the initial proposed stage (26:12 VA.R. 1864-1865 February 15, 2010) supporting the amendment. Based on the volume of comments from the first public comment stage (February 15, 2010, through April 16, 2010) supporting the lawful carrying of both open and concealed firearms on state forests and a review of Virginia statutes, DOF is proposing a second public comment stage and a new proposed regulation to allow the lawful carrying of open and concealed firearms on state forests.

Substance: The agency will change its regulation, which currently prohibits the carrying of firearms onto state forests, except for lawful hunting, to allow persons to carry lawful open carried and concealed firearms onto state forests.

Issues: Citizens may carry concealed handguns with a valid permit in Virginia. The state forest amendment will ensure that law abiding citizens will not violate a regulation that carries a Class 4 misdemeanor penalty.

The Virginia Citizens Defense League requested DOF to amend 4VAC10-30-170 to lift the prohibition against carrying lawfully open carried and concealed firearms on the state forests. During the first public comment phase from February 15, 2010, through April 16, 2010, DOF received a large number of comments in support of both lawful carrying of open and concealed firearms on state forests. DOF will initiate actions for a second public comment period of 30 days to reflect a regulatory amendment that will allow the lawful carrying of both open and concealed firearms. This amendment allows persons to carry lawful open carried and concealed firearms onto state forests at any time.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Forestry proposes to allow the holders of concealed weapons permits to carry their concealed handguns in state forests and to also allow open carry of weapons that are lawfully allowed to be carried openly outside of state forests.

Result of Analysis. The benefits likely exceed the costs for this proposed change.

Estimated Economic Impact. Current state forestry regulations prohibit any individual from bringing any explosives or firearms into state forests. The department proposes to amend this prohibition so that it does not apply to lawfully possessed firearms and ammunition. This change will allow both concealed carrying of firearms, by those who possess a concealed carry permit, and open carry for anyone in lawful possession of a firearm.

This change will allow individuals to have the protection of a weapon in state forests which will likely provide a benefit for them as well as any other unarmed citizens that might receive ancillary protection from crime or animal attack. It is very unlikely that any individual would suffer costs from increased crimes on account of this change because concealed carry holders appear to commit far fewer crimes than individuals that don't hold concealed carry permits.¹ There appear to be no studies that attempt to measure any negative impact of open carry on unarmed individuals but anecdotal evidence suggests that such impact would be minimal to nonexistent.

Businesses and Entities Affected. This proposed regulatory change will affect all individuals who visit, or travel in, state forests.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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¹ David Kopel of Stanford University's Hoover Institute writes, in an overview of research on concealed carry permit holders and crime, that in Florida permit holders are about 300 times less likely to perpetrate a gun crime than Floridians without permits.

Agency's Response to Economic Impact Analysis: The Department of Forestry concurs with the findings of the Department of Planning and Budget Economic Impact Analysis dated December 15, 2010. The Department of Forestry proposes to allow the holders of concealed weapons permits to carry their concealed handguns in state forests and to also allow open carry of weapons that are lawfully allowed to be carried openly outside of state forests. The change does not add new responsibilities to state or local officials responsible for enforcing weapons laws. The change in regulations will conform to all applicable firearms laws.

Summary:

The revised proposed amendment allows the lawful carry of open and concealed firearms in Virginia's state forests. The difference between the initial proposed amendment and this amendment is the lifting of the prohibition against the lawful open carry of firearms. The amendment is intended to ensure that the regulation is in synchronization with the laws.

The current regulation prohibits individuals from carrying any firearms onto state forest properties unless exempted because of lawful hunting seasons. The revised proposed amendment allows persons to carry lawful open and concealed firearms onto state forest properties under the ownership and management of the Department of Forestry.

4VAC10-30-170. Explosives, fires firearms, etc.

No person shall bring into or have in any forest any explosive or explosive substance [ , except commercial sporting firearms ammunition; explosives, explosive substances and firearms of all types are prohibited in any portion of a forest assigned to the Department of Forestry, for administration as a recreational area ]. This regulation shall not apply to the [ lawful ] carrying of [ concealed handguns within state forests by holders of a valid concealed handgun permit issued pursuant to § 18.2-308 of the Code of Virginia firearms and firearms ammunition ].