TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 53. FINANCE

SUBCHAPTER A. FEES

DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES

31 TAC §53.12

The Texas Parks and Wildlife Commission, in a duly noticed meeting on January 26, 2017, adopted an amendment to §53.12, concerning Commercial Fishing Licenses and Tags without changes to the proposed text as published in the December 23, 2016, issue of the Texas Register (41 TexReg 10069).

The amendment alters the name of a permit, adding the word "possess" in order to reflect the effect of new §57.385, the notice of adoption for which is published elsewhere in this issue of the Texas Register, which requires persons who collect or possess shad in excess of certain limits to obtain a permit.

The department received no comments opposing or supporting adoption of the proposed rule.

The amendment is adopted under Parks and Wildlife Code, Chapter 67, which gives the commission the authority to establish any limitations on the take, possession, propagation, transportation, importation, exportation, sale, and offering for sale of nongame fish and wildlife necessary to manage those species.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 24, 2017.

TRD-201701281

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: April 13, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 389-4775


SUBCHAPTER G. MARINE DEALERS, DISTRIBUTORS, AND MANUFACTURERS

The Texas Parks and Wildlife Commission in a duly noticed meeting on January 26, 2017, adopted the repeal of §53.110 and new §§53.110 - 53.115, concerning Marine Dealers, Distributors, and Manufacturers. Section 53.112 and §53.113 are adopted with changes to the proposed text as published in the December 23, 2016, issue of the Texas Register (41 TexReg 10070). The repeal of §53.110 and new §§53.110, 53.111, 53.114, and 53.115 are adopted without changes and will not be republished.

The change to §53.112, concerning Application and Issuance, consists of several nonsubstantive typographical corrections. The word "shall" occurs twice in proposed subsection (a); the change removes the second instance. Similarly, a superfluous "and" is removed from subsection (a)(5). Additionally, the word "number" is inserted following the word "telephone" in subsection (a)(7) to clarify that the reference to telephone in that paragraph is a reference to the telephone number of an applicant for license.

The change to §53.113, concerning Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License, redesignates proposed subsection (a)(2)(E) as subsection (a)(3) to maintain structural parallelism. Subsection (a)(2) contains a list of violations in subparagraphs (A) - (D) for which the department may refuse to issue or renew a license; proposed subparagraph (E) is a provision regarding denial of license issuance or renewal to surrogates of persons who are prohibited from obtaining a license and should be a standalone provision.

The previous rule governing marine dealers, distributors, and manufacturers consisted of a single section, which the department determined was unwieldy and difficult to navigate. By repealing that rule and replacing it with several new sections delimited according to similarity of subject matter, the department intends to create a more user-friendly and approachable regulatory structure.

New §53.110, concerning Definitions, retains the provisions of current subsection (a) and adds three new definitions. New §53.110(1) defines "applicant" as "a person or entity who has applied for a new or renewal license. This includes each member of a partnership or association, each officer of a corporation, the owner of a majority of a corporation's corporate stock, and any agent or employee acting on behalf of any of the aforementioned persons or entities." The definition is necessary because the term "applicant" is used in several places in the new rules and a definition is necessary to provide an unambiguous meaning. Similarly, the new rule provides definitions of "final conviction" and "licensee." Because new §53.113, concerning Refusal to Issue or Renew Licenses; Review of Agency Decision to Refuse or Renew License, addresses the denial or refusal of license issuance on the basis of an applicant's criminal history of final convictions for certain offenses, it is necessary to define "final conviction." Therefore, new §53.110(3) defines that term as "a final judgment of guilt, the entering of a plea of guilty or nolo contendere, or the granting of deferred adjudication or pretrial diversion in accordance with Occupations Code, §53.021(d)," which identifies the possible judicial outcomes that the department would consider to constitute a final conviction for purposes of denying license issuance. Similarly, new §53.110(4) defines "licensee" as "a person or entity who has received a license under this subchapter. This includes each member of a partnership or association, each officer of a corporation, the owner of a majority of a corporation's corporate stock, and any agent or employee acting on behalf of any of the aforementioned persons or entities," which is necessary to identify the specific conditions under which the department would consider a person to be a licensee for purposes of enforcement or administration of the rules.

New §53.111, concerning Applicability, consists of the contents of previous §53.110(b), which identifies the activities constituting the business of buying, selling, selling on consignment, displaying for sale, or exchanging a vessel. Under Parks and Wildlife Code, §31.041, a person may not engage in business in this state as a dealer, distributor, or manufacturer unless the person holds a license for that purpose issued by the department. Therefore, it is necessary to delineate the activities that the department considers to constitute "engaging in business" for purposes of the applicability of the rules.

New §53.112, concerning Application and Issuance, consists of the contents of previous §53.113(c) - (e), which prescribes the documentation required by the department prior to any issuance or renewal of a dealer, distributor, or manufacturer's license.

New §53.112(a) provides that for a dealer license, an applicant is required to submit the fee for the license, accompanied by photographs of a permanent sign bearing the name of the business at the location of business, the front of the business (proving public access), and space sufficient for office, service area (not applicable to floating inventory or listings), and display of vessels, motorboats, or outboard motors (not applicable to floating inventory or listings). Additionally, an applicant is required to furnish a copy of the Tax Permit issued by the Comptroller under Chapter 151, Tax Code, submit all assumed name(s) on file with the Secretary of State or county clerk; a copy of personal identification documentation of the owner, president, or managing partner of the business, and a list of dealer agreements. Parks and Wildlife Code, §31.041(a) prohibits any person from engaging in business in this state as a dealer, distributor, or manufacturer unless the person holds a license issued by the department for that purpose and has entered into a license agreement with the department. That section also requires a dealer to have a separate license for each place of business. Additionally, Parks and Wildlife Code, §31.041(e) requires an application for a dealer license to be accompanied by photographs of the business sufficient to show any sign the business is required to display and the extent of the space the business is required to maintain. The application must also be accompanied by a copy of the tax permit of the dealer, distributor, or manufacturer issued by the comptroller under Chapter 151, Tax Code, if the dealer, distributor, or manufacturer has a tax permit. Therefore, the previous rule as well as the new section require verification of what the department has determined are the minimum reasonable expectations necessary to establish that the applicant has complied with the statute. With respect to the documentation of floating inventory (vessels or outboard motors not kept at a single location), such as commission-sale brokers who at any given time may be attempting to sell vessels located on the water in different parts of the state, the previous rule required the applicant to furnish the physical address of the office, the physical address, phone number, and management /ownership information for at least five marinas where vessels are expected to be moored, or an explanatory note if the applicant expected to keep inventory at fewer than five marinas, which is necessary to ensure that the department's rules encompass the variety of business models that are affected by the requirements of Parks and Wildlife Code, Chapter 31. The new rule retains these requirements; however, instead of furnishing the required information for at least five marinas, the new rule requires the information to be provided for all marinas where an applicant maintains inventory. The change is necessary to account for all inventory subject to the rules.

For a distributor or manufacturer license, new §53.112(b) requires a properly completed application form to be submitted, accompanied by the appropriate fee, verification of all assumed names on file with the Secretary of State or county clerk, a complete list of manufacturers represented by a distributorship, and a complete list of distributors, dealers, and representatives for a manufacturer, which is necessary for the department to determine that the applicant, if issued a license, is compliant with the applicable tax and registration requirements applicable to boats and motors in Texas.

Finally, new §53.112(c) requires applicants for a dealer, distributor, or manufacturers license to sign a license agreement stating that the applicant agrees to comply with all applicable state laws, including Occupations Code, Chapter 2352, concerning Franchise Agreements, when required. The new provision is required by Parks and Wildlife Code, §31.041(a) and is necessary to ensure that licensees provide affirmative evidence of intent to comply with the laws of the state.

New §53.113, regarding Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License, sets forth new provisions regarding the circumstances under which the department could refuse to issue or renew a dealer, distributor, or manufacturer license, and implements a process to review agency decisions to refuse license issuance or renewal.

The department is engaged in an overall effort to create uniform criteria for the denial of special permits and licenses to persons who have been proven to exhibit disregard for statutes and regulations governing license and permit privileges and parks and wildlife laws in general. Therefore, the new section eliminates the previous criteria used by the department to revoke or suspend a license and institutes new criteria for denial of license issuance or renewal, as well as a review process for license denials.

Under new §53.113, the department could choose to refuse license issuance or renewal to any person who applies for a dealer, distributor, or manufacturer license if the applicant has been finally convicted of or been assessed an administrative penalty for any violation of Parks and Wildlife Code, Chapter 31, Subchapter A, B, B-1, C, D, or E or that is a Class A or B misdemeanor, state jail felony, or felony; Chapters 51, 53, or 55 of the department's regulations, or any federal or state law relating to the sale, distribution, financing, registration, or taxing of a vessel, motorboat, or outboard motor. The new section also provides for license denial if an applicant is liable to the state under Parks and Wildlife Code, §12.301, or if department has evidence that the applicant is acting on behalf of or as a surrogate for another person or entity who has a final conviction or has been assessed an administrative penalty for any violation listed in this subsection.

The department believes that a person who has demonstrated egregious, repeated, or reckless disregard for parks and wildlife laws other than those punishable as Class C misdemeanors (i.e., minor crimes such as bag and possession limit violations), and specifically, laws relating to water safety, boat registration, titling, taxation, and commerce should not be accorded the privilege of holding a commercial license issued by the department. Similarly, a person who is indebted to the state for the civil restitution value of fish and wildlife resources that were unlawfully taken or possessed should not be accorded license privileges.

The new section also allows the department to refuse to issue a license to any person the department has reason to believe is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in licensed activities. In some cases, persons who have been prohibited from obtaining certain types of permits and licenses have attempted to continue their activities by using proxies to obtain a permit or license. The department's intent is to ensure that persons the department intends to prevent from engaging in certain activities are in fact prevented from doing so.

The department does not intend for a conviction or administrative penalty to be an automatic bar to obtaining a dealer, distributor, or manufacturer license. Therefore, the rule provides for the department to consider a number of factors and make such determinations on a case-by-case basis. The factors that may be considered by the department in determining whether to deny a license based on a conviction or deferred adjudication include the seriousness of the offence, the number of offenses, the existence or absence of a pattern of offenses, the length of time between the offense and the license application, and any other pertinent factors.

Finally, the amendment creates a mechanism for persons who have been denied license issuance to have the opportunity to have such decisions reviewed by department managers, which is intended to help ensure that decisions affecting license privileges are correct.

New §53.114, concerning Suspension or Revocation, sets forth the conditions and process for the department to revoke or suspend a license. Parks and Wildlife Code, Chapter 12, Subchapter F, prescribes the process for the department to revoke or suspend a license or permit. Under that statute, the executive director may suspend or revoke a permit or license, if it is found after notice and hearing, that the licensee violated or has been finally convicted of a violation of the Parks and Wildlife Code or regulation of the commission related to the license being revoked, for making false or misleading statements on an application, or for indebtedness to the state for taxes, fees, payment of penalties relating to the license being revoked or suspended, or is liable to the state under Parks and Wildlife Code, §12.301. Those criteria were recapitulated in the previous rule (§53.110(i)(1) - (4)) and are retained in the new rule. The new rule also retains previous §53.110(i)(5), (6), (8), and (9), which allow for license renewal or revocation if the applicant or licensee was previously the holder of a similar license that was revoked for cause and never reissued by the department, or that was suspended for cause and the terms of the suspension were not fulfilled; if the applicant or licensee was previously a partner, stockholder, director, or officer controlling or managing a partnership, corporation, or store location whose license was revoked for cause and never reissued, or was suspended for cause and the terms of the suspension were not fulfilled; if the licensee or an employee of the licensee has obtained, or attempted to obtain, any money, commission, fee, barter, exchange or other compensation by fraud, deception or misrepresentation; or if the licensee or an employee of the licensee was finally convicted or received deferred adjudication for a violation of any federal or state law relating to the sale, distribution, financing, registration, taxing, or insuring of a vessel. The new rule also explicitly states that revocation or suspension of a license is to be conducted pursuant to the requirements of Parks and Wildlife Code, Chapter 12, Subchapter J.

New §53.115, concerning Recordkeeping, Display of License, and Notification Requirements, consists of the contents of previous §53.110(f) - (h), which required a licensee to notify the department in writing within 10 days of any change of ownership, business name, physical location, dealer agreement, distributors, dealers, or representatives, or address or phone information; required licenses to be publicly displayed at all times in the place of business for which the license is issued; required licensees to keep a complete record, to include date of purchase, date of sale, hull identification number and/or motor identification number, name and address of person selling to the dealer, name and address of person purchasing from the dealer, name and address of selling dealer or individual if vessel and/or outboard motor is offered for sale by consignment, a copy of the vessel/outboard motor title/registration receipt, copies of any and all documents, forms, and agreements applicable to a particular sale, consignment, listing, transfer of ownership, titling, titling and registration, or documentation through the U.S. Coast Guard, including, but not limited to title applications, work-up sheets, Manufacturer's Certificates of Origin, titles or photocopies of the front and back of titles, factory invoices, sales contracts, retail installment agreements, buyer's orders, bills of sale, waivers, or other agreements between the seller and purchaser, and copies of written consignment agreements or power of attorney for vessels, motorboats, or outboard motors. The new section is necessary to allow the department to verify, from inspection of required records, that a licensee is compliant with the applicable provisions of the subchapter and Parks and Wildlife Code.

The department received no comments opposing adoption of the proposed rules.

The department received two comments supporting adoption of the proposed rules.

The Texas Boating Trades Association commented in support of adoption of the proposed rules.

No groups or associations commented in opposition to adoption of the proposed rules.

31 TAC §53.110

The Texas Parks and Wildlife Commission adopts the repeal under the authority of Parks and Wildlife Code, §31.0412, which authorizes the commission to promulgate rules regarding marine dealer, distributor, and manufacturing licenses, including rules prescribing application and license agreement forms; application and renewal procedures; reporting and recordkeeping requirements for license holders; license requirements; and license revocation and suspension procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 21, 2017.

TRD-201701198

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: April 10, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 389-4775


31 TAC §§53.110 - 53.115

The new sections are adopted under the authority of Parks and Wildlife Code, §31.0412, which authorizes the commission to promulgate rules regarding marine dealer, distributor, and manufacturing licenses, including rules prescribing application and license agreement forms; application and renewal procedures; reporting and recordkeeping requirements for license holders; license requirements; and license revocation and suspension procedures.

§53.112.Application and Issuance.

(a) An applicant for a dealer license shall submit a properly completed, department-approved application form, accompanied by the following:

(1) the fee prescribed by law;

(2) photographs clearly showing:

(A) the permanent sign at the location designated in the application as the applicant's permanent place of business, clearly indicating the name of the business;

(B) the front of the business with public access; and

(C) space sufficient for office, service area (not applicable to floating inventory or listings), and display of vessels, motorboats, or outboard motors (not applicable to floating inventory or listings);

(3) a copy of the Tax Permit issued by the Comptroller under Chapter 151, Tax Code;

(4) verification of all assumed name(s), if applicable, in the form of assumed name certificate(s) on file with the Secretary of State or county clerk;

(5) a photocopy of the current driver's license or Department of Public Safety identification of the owner, president or managing partner of the business; and

(6) a complete list of dealer agreements; and

(7) if the applicant is to maintain floating inventory or listings at a location other than that designated as the applicant's permanent place of business, a record of all marinas where floating inventory or listings are expected to be displayed. If the applicant contemplates using less than five marinas, then the application shall include an explanatory statement. The record must identify, at a minimum, the name, physical address, and telephone for each marina.

(b) An applicant for a distributor or manufacturer license shall submit a properly completed, department-approved application form accompanied by the following:

(1) the fee prescribed by law for each license requested;

(2) verification of all assumed name(s), if applicable, in the form of assumed name certificate(s) on file with the Secretary of State or county clerk;

(3) a complete list of manufacturers represented by a distributorship; and

(4) a complete list of distributors, dealers, and representatives for a manufacturer.

(c) The department will not issue a license under this subchapter if the applicant has not signed and submitted a department-provided license agreement stating that the applicant agrees to comply with all applicable state laws, including Occupations Code, Chapter 2352, concerning Franchise Agreements, when required.

§53.113.Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License.

(a) The department may refuse to issue or renew a license under this subchapter if:

(1) an applicant is liable to the state under Parks and Wildlife Code §12.301;

(2) an applicant has a final conviction or has been assessed an administrative penalty for a violation of:

(A) Parks and Wildlife Code, Chapter 31, Subchapter A, B, B-1, C, D, or E;

(B) a provision of the Parks and Wildlife Code not described by subparagraph (A) of this paragraph that is punishable as a Parks and Wildlife Code:

(i) Class A or B misdemeanor;

(ii) state jail felony; or

(iii) felony;

(iv) Chapters 51, 53, or 55 of this title; or

(v) any federal or state law relating to the sale, distribution, financing, registration, or taxing of a vessel, motorboat, or outboard motor; or

(3) the department has evidence that the applicant is acting on behalf of or as a surrogate for another person or entity who has a final conviction or has been assessed an administrative penalty for any violation listed in this subsection.

(b) In determining whether to issue or renew a license under this section, the department may consider:

(1) the number of final convictions or administrative penalties;

(2) the seriousness of the conduct on which the final conviction or administrative penalty is based;

(3) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by paragraph (1) of this subsection;

(4) the length of time between the most recent final conviction or administrative penalty and the license application;

(5) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;

(6) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both; and

(7) other mitigating factors.

(c) The department shall provide to the applicant a written statement of the reasons for a decision to deny the issuance or renewal of a license.

(d) An applicant may request a review of a decision of the department with respect to license issuance or denial. The request for review must be made within 30 days of being notified by the department that the application for a license or license renewal has been denied. The review request must be in writing and addressed to: Manager of Boat Titling, Registration, and Marine Licensing, Texas Parks and Wildlife Department, 4200 Smith School Rd., Austin, TX 78744. If no review request is received within 30 days of the date of the letter notifying the licensee of the department's intent to refuse issuance or renewal of the license, the decision to deny the issuance or renewal of a license is final.

(1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

(2) The department shall conduct the review within 30 days of receipt of the request required by subsection (d) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.

(3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with knowledge in boating regulations, appointed or approved by the executive director or his or her designee.

(4) The decision of the review panel is final.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 21, 2017.

TRD-201701199

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: April 10, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 389-4775


CHAPTER 55. LAW ENFORCEMENT

SUBCHAPTER F. FLOATING CABINS

31 TAC §55.202, §55.208

The Texas Parks and Wildlife Commission, in a duly noticed meeting on January 26, 2017, adopted an amendment to §55.202, concerning Period of Validity; Renewal and Transfer of Permits and new §55.208, concerning Refusal to Renew Permit; Review of Agency Decision to Refuse Permit Renewal. New §55.208 is adopted with changes to the proposed text as published in the December 23, 2016, issue of the Texas Register (41 TexReg 100075). The amendment to §55.202 is adopted without changes and will not be republished.

The change to §55.208 redesignates proposed subsection (a)(2)(A)(iv) as subsection (a)(2)(B) which is necessary to preserve structural parallelism. The list of violations enumerated in clauses (i) - (iii) pertain to violations of the Parks and Wildlife Code; the violation specified in clause (iv) pertains to the Water Code. The change also alters subsection (d)(4) to clarify that in the context of the provision, "designee" means a person designated by the executive director.

The amendment to §55.202 eliminates language in subsection (c) providing for notification and review of permit expiration. The amendment is necessary because new §55.208 creates a comprehensive process for refusal of renewal of a floating cabin permit; thus, the provisions in §55.202 are not necessary.

Under the previous rules the only criteria for denying renewal of a floating cabin permit was if the permittee had allowed a floating cabin permit to expire. New §55.208 institutes additional criteria for denial of permit renewal, and implements a review process for permit denials. The amendment is part of an overall effort to create uniform criteria for the denial of special permits and licenses to persons who have been proven to exhibit disregard for statutes and regulations governing special permit and license privileges and parks and wildlife laws in general.

New §55.208 allows the department to deny permit renewal to any person who has been finally convicted or assessed an administrative penalty for a violation of Parks and Wildlife Code that is Class A or B misdemeanor, state jail felony, or felony, or a violation of Water Code, §26.121 (which applies to water pollution, such as wastewater discharges). Additionally, the new section allows for permit renewal denial if the applicant is liable to the state under Parks and Wildlife Code, §12.301 (civil restitution value of fish and wildlife resources unlawfully taken or possessed).

The department believes that a person who has demonstrated egregious, repeated, or reckless disregard for Parks and Wildlife laws other than those punishable as Class C misdemeanors (i.e., minor crimes such as bag and possession limit violations), and specifically, laws relating to water pollution, should not be accorded the privilege of holding a floating cabin permit. Similarly, a person who is indebted to the state for the civil restitution value of fish and wildlife resources that were unlawfully taken or possessed should not be accorded permit privileges.

The department does not intend for a conviction or administrative penalty to be an automatic bar to renewal of a floating cabin permit. Therefore, the new rule provides for the department to consider a number of factors and make such determinations on a case-by-case basis. The factors that may be considered by the department in determining whether to deny a permit based on a conviction or deferred adjudication would include the seriousness of the offence, the number of offenses, the existence or absences of a pattern of offenses, the length of time between the offense and the permit application, and any other pertinent factors.

Finally, the new rule creates a mechanism for persons who have been denied permit renewal to have the opportunity to have such decisions reviewed by department managers, which is intended to help ensure that decisions affecting license privileges are correct.

The department received one comment opposing adoption of the proposed rules. The commenter did not articulate a reason or rationale for opposing adoption.

The department received nine comments supporting adoption of the proposed rules.

No groups or associations commented on the proposed rules.

The amendment and new section are adopted under the authority of Parks and Wildlife Code, §32.005, which authorizes the commission to promulgate rules necessary to implement the provisions of Parks and Wildlife Code, Chapter 32.

§55.208.Refusal to Renew Permit; Review of Agency Decision to Refuse Permit Renewal.

(a) In addition to refusal of permit renewal under the provisions of §55.202(c) of this title (relating to Period of Validity; Renewal and Transfer of Permits), the department may refuse to renew a permit under this subchapter if:

(1) an applicant is liable to the state under Parks and Wildlife Code §12.301;

(2) an applicant has been finally convicted or assessed an administrative penalty for a violation of:

(A) a provision of the Parks and Wildlife Code that is punishable as a Parks and Wildlife Code:

(i) Class A or B misdemeanor;

(ii) state jail felony; or

(iii) felony; or

(B) a violation of Water Code, §26.121.

(b) In determining whether to renew a permit under this section, the department may consider:

(1) the number of final convictions or administrative penalties;

(2) the seriousness of the conduct on which the final conviction or administrative penalty is based;

(3) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by subsection (a)(2) of this section;

(4) the length of time between the most recent final conviction or administrative penalty and the application for permit renewal;

(5) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;

(6) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant; and

(7) other mitigating factors.

(c) The department shall provide to the applicant a written statement of the reasons for a decision to deny the renewal of a permit.

(d) An applicant for a permit renewal may request a review of a decision of the department to refuse permit renewal.

(1) An applicant seeking review of a decision of the department with respect to permit renewal must request the review within 10 working days of being notified by the department that the application for permit renewal has been denied. The review request must be in writing and addressed to: Marine Enforcement, Texas Parks and Wildlife Department, 4200 Smith School Rd., Austin, TX 78744.

(2) Within 10 working days of receiving a request for review under this subsection, the department shall establish a date and time for the review.

(3) The department shall conduct the review within 30 days of receipt of the request required by paragraph (2) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.

(4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in marine regulations, appointed or approved by the executive director, or the executive director's designee.

(5) The decision of the review panel is final.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 21, 2017.

TRD-201701197

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: April 10, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 389-4775


SUBCHAPTER H. PARTY BOATS

31 TAC §55.404

In a duly noticed meeting on January 26, 2017, the Texas Parks and Wildlife Commission adopted an amendment to §55.404, concerning Party Boat Operator License-General Provisions, without changes to the proposed text as published in the December 23, 2016, issue of the Texas Register (41 TexReg 10077).

The amendment institutes new criteria for permit issuance denial and implements a review process for permit denials. The amendment is part of an overall effort to create uniform criteria for the denial of special permits and licenses to persons who have been proven to exhibit disregard for statutes and regulations governing permit privileges and parks and wildlife laws in general.

Under the previous rule the department would not issue a party boat operator license to any person who had, within five-years of an application, been convicted of a violation of Penal Code, Chapter 49, involving the operation of a motorboat or a violation of Parks and Wildlife Code, Chapter 31, involving reckless or negligent behavior or behavior that placed passengers in peril. The previous rule also prohibited license issuance to a person prohibited from holding an equivalent license in another state.

The amendment eliminates the previous automatic prohibition of licensure and allows licenses to be issued at the department's discretion; however, the five-year period of applicability of the old rule has been eliminated (meaning conviction for a listed offense committed at any time is justification for license denial) and the subsection will apply to a wider range of offenses. In addition to the current criteria for license denial, the amendment provides for the department to refuse permit issuance to any person who applies for a party boat operator license if the applicant has been finally convicted of or been assessed an administrative penalty for any violation of Parks and Wildlife Code that is a Class A or B misdemeanor, state jail felony, or felony; a violation of Water Code, §26.121 (environmental crimes related to water pollution by boats); or any federal or state law relating to the sale, distribution, financing, registration, or taxing of a vessel, motorboat, or outboard motor. The amendment also provides for permit denial if an applicant is liable to the state under Parks and Wildlife Code, §12.301, or if department has evidence that the applicant is acting on behalf of or as a surrogate for another person or entity who has a final conviction or has been assessed an administrative penalty for any violation listed in this subsection.

The department believes that a person who has demonstrated egregious, repeated, or reckless disregard for parks and wildlife laws other than those punishable as Class C misdemeanors (i.e., minor crimes such as bag and possession limit violations), and specifically, laws relating to water safety, water pollution, and boat registration, taxation, and commerce should not be accorded the privilege of holding a commercial license issued by the department. Similarly, a person who is indebted to the state for the civil restitution value of fish and wildlife resources that were unlawfully taken or possessed should not be accorded license privileges.

The amendment also allows the department to refuse to issue a permit to any person the department has reason to believe is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities. In some cases, persons who have been prohibited from obtaining certain types of permits and licenses have attempted to continue their activities by using proxies to obtain a required permit or license. The department's intent is to ensure that persons the department intends to prevent from engaging in certain activities are in fact prevented from doing so.

The department does not intend for a conviction or administrative penalty to be an automatic bar to obtaining a party boat operator license. Therefore, the rule also provides for the department to consider a number of factors and make such determinations on a case-by-case basis. The factors that may be considered by the department in determining whether to deny a permit based on a conviction or deferred adjudication would include the seriousness of the offence, the number of offenses, the existence or absences of a pattern of offenses, the length of time between the offense and the permit application, and any other pertinent factors.

Finally, the amendment creates a mechanism for persons who have been denied license issuance to have the opportunity to have such decisions reviewed by department managers, which is intended to help ensure that decisions affecting license privileges are correct.

The department received one comment opposing adoption of the rule as proposed. The commenter stated that persons who don't obey boating laws or fish and game laws should not be allowed to obtain any commercial permit. The department disagrees with the comment and responds that an automatic prohibition on permit issuance would make it impossible for the department to consider instances in which mitigating factors actually are compelling. No changes were made as a result of the comment.

The department received nine comments supporting adoption of the proposed rule. No groups or associations commented on the proposed rule.

The amendment is adopted under the authority of Parks and Wildlife Code, §31.180, which authorizes the commission to promulgate rules necessary to implement Parks and Wildlife Code, Chapter 31, Subchapter G.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 21, 2017.

TRD-201701195

Robert D. Sweeny, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: April 10, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 389-4775


CHAPTER 57. FISHERIES

SUBCHAPTER E. PERMITS TO COLLECT OR SELL NONGAME FISH TAKEN FROM PUBLIC FRESH WATER

31 TAC §§57.377, 57. 379 - 57.381, 57.384, 57.385

The Texas Parks and Wildlife Commission in a duly noticed meeting on January 26, 2017, adopted amendments to §§57.377, 57.379 - 57.381, and 57.384, and new §57.385, concerning Permits to Collect or Sell Nongame Fish Taken from Public Fresh Water. Sections 57.381, 57.384, and 57.385 are adopted with changes to the proposed text as published in the December 23, 2016, issue of the Texas Register (41 TexReg 10079). The changes to §§57.381, 57.384, and 57.385 consist of nonsubstantive changes to capitalization of initial words in order to preserves grammatical parallelism. The change to §57.381 is also nonsubstantive, inserting the article "the" in subsection (b) for grammatical consistency. Sections 57.377, 57.379, and 57.380 are adopted without changes and will not be republished.

Under the current provisions of Chapter 57, Subchapter E, a permit is required for any person who wishes to sell certain nongame fishes, including shad, taken from public waters. New §57.385, concerning Special Provisions - Shad, establishes a volumetric value for the collection of shad, at or above which a permit is required, irrespective of whether the harvested shad were sold. Therefore, the title of Subchapter E is now Permits to Collect or Sell Nongame Fish Taken from Public Fresh Water. The department has determined that because shad are a public resource managed by the department, the large-scale harvest of that resource should be monitored and managed by the department. By requiring persons who harvest large numbers of shad to obtain a permit and file annual reports, the amendments will allow the department to monitor any impacts to the resource. In addition, the amendments alter provisions regarding the department's actions regarding issuance and renewal of permits.

The amendment to §57.377, concerning Definitions, defines "shad" as "gizzard and threadfin shad (Dorosoma spp.)," which is necessary to definitively establish the taxonomic identity of the species to which the rules apply.

The amendment to §57.379, concerning Prohibited Acts, replaces the word "exempted" with the word "provided" in the initial sentence of the section. In a technical sense, the rules do not exempt anyone from anything, but provide for the various circumstance under which the provisions of the subchapter apply.

The amendment to §57.380, concerning Permit Application, streamlines language, adds a cross-reference to department regulations concerning fees, and provides for up to eight persons to be named on a permit as assistants to the permittee in the conduct of permitted activities. Previous subsection (a) referred to "a permit to sell nongame fish taken from public fresh waters of this state." The department determined that since Subchapter E consists of the rules governing permits to sell nongame fish taken from public fresh waters of the state, it is redundant to repeat that verbiage throughout the rules. Instead, the department believes it is simpler and easier to simply refer to "permits issued under this subchapter." Similar changes are made in the amendments to §57.381. The amendment also alters subsection (a) to include a cross-reference to Chapter 53 of the department's regulations, which establish permit fees, for ease of reference. Finally, the amendment allows a permittee to designate up to eight individuals to assist the permittee in the conduct of permitted activities. Under the previous rules, a permittee was authorized to name up to two additional persons to assist in the conduct of permitted activities; however, a permit amendment was required if a permittee wished to eliminate or replace assistants. For purposes of enforcement, it is necessary for assistants to be named on a permit; however, the department has determined that it is inefficient for the department and the regulated community to go through the process of permit amendment each time an assistant is added or removed and that increasing the number of assistants that may be named on a permit will streamline the process for both the department and the regulated community.

The amendment to §57.381, concerning Permit Specifications and Requirements, requires designated assistants be either on board the same vessel with the permit holder or within line-of-sight of the permit holder (if the assistant is not on the same vessel) at all times that the assistant is engaged in permitted activities. The line-of-sight requirement is necessary because the permit holder should be directly supervising all permit activities in order to ensure that permit requirements are met. Additionally, having a line-of-sight requirement will enhance enforcement. The amendment also makes nonsubstantive changes as previously described in the discussion of the amendment to §57.380.

The amendment to §57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance, allows the department to refuse permit issuance on the basis of the likelihood that prospective permit activities could increase the risk of the transfer or spread of harmful or potentially harmful exotic fish or shellfish. The negative environmental and recreational impacts of invasive species such as zebra mussels are well documented. The department is aggressively engaged in efforts to stop the spread of such species and has determined that because the transport of aquatic species represents the potential to also transport harmful and potentially harmful species, it might be necessary to refuse permit issuance in instances in which a prospective activity presents unacceptable risk. The amendment also allows for the refusal of permit issuance to persons whom the department has evidence to believe are attempting to obtain a permit on behalf of or as a surrogate for another person who is not eligible to obtain a permit. Under the previous rule, the department could decide not to issue a permit on the basis of an applicant's criminal history with respect to violations of fish and wildlife law. The department does not believe that a person who has by their own conduct and behavior become ineligible for permit privileges should be able to use a surrogate to avoid the intent of the department in denying permit issuance; therefore, the amendment authorizes the department to refuse permit issuance to persons attempting to obtain a permit on behalf of someone who is prevented from obtaining the permit on the basis of previous criminal activity.

New §57.385, concerning Special Provisions - Shad, establishes the conditions under which a permit is required for the possession and/or sale of shad taken from public waters.

New §57.385(a) prohibits the sale, offer for sale, possession for purpose of sale, or exchange for anything of value of shad taken from public fresh water without a valid fishing license and appropriate nongame fish permit. Under the previous rule, it was unlawful to sell any nongame fish taken from public water without an appropriate fishing license and permit for that activity; thus the new provision is not substantive.

New §57.385(b) prohibits, with exceptions, the collection of shad from public fresh water without a permit if the shad are possessed in container(s) exceeding 82 quarts in volume. A permit is not required if the shad are not sold or exchanged for anything of value, if the shad are used only as bait on the waterbody where they were collected, or if the shad are possessed by a licensed fishing guide who furnishes the shad as bait to customers as part of the guide's services. The department selected a volumetric value for a possession standard because shad are small fish that are sensitive to handling. A specific numerical bag limit of individual fish would be problematic in the context of compliance and enforcement and in any event significant capture mortality could be expected as a result of the counting process. The department selected the 82-quart value because it is not believed that the collection of smaller volumes of shad for purposes of sale is biologically significant.

The department received four comments opposing adoption of the proposed rules. Three of the comments articulated a reason or rationale for opposing adoption. The comments, accompanied by the department's response to each, follow.

One commenter opposed adoption on the basis of "more government involvement." The department disagrees with the comment and responds that the department has a statutory duty to protect and manage the fisheries resources of the state, and that the rules as adopted are consistent with the discharge of that duty. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department's motivation is to increase revenue, since piscivorous birds consume more shad in one day than humans take in a year. The department disagrees with the comment and responds that the revenue implications of the rules as adopted are infinitesimally small (because of the very low number of persons affected) and that human impacts to shad populations are additive to natural processes and monitoring efforts help to provide assurance that fisheries resources are being adequately managed. No changes were made as a result of the comments.

One commenter opposed adoption and stated that new rules are frightening, that most people obey the law but when the law gets complicated it makes criminals out of more people, and that the department is interested only in generating revenue from fines. The department disagrees with the comment and responds that the permit requirements as adopted will affect fewer than ten persons, meaning the overwhelming majority of anglers are not affected. The department also responds that given the small number of affected persons, it is reasonable to conclude that any revenue from enforcement actions probably will be negligible. No changes were made as a result of the comment.

The department received 13 comments supporting adoption of the rules as proposed.

No groups or associations commented on the proposed rules.

The amendments and new section are adopted under Parks and Wildlife Code, Chapter 67, which gives the commission the authority to establish any limitations on the take, possession, propagation, transportation, importation, exportation, sale, and offering for sale of nongame fish and wildlife necessary to manage those species.

§57.381.Permit Specifications and Requirements.

(a) A permit issued under this subchapter shall specify:

(1) the name, telephone number and physical address of the permittee;

(2) the water body where the activity is permitted;

(3) the nongame fish species for which take and/or sale is allowed; and

(4) the types and number of devices which may be used to take nongame fish.

(b) A permit issued under this subchapter is not transferable or assignable.

(c) At all times that a person designated as an assistant is engaged in a permitted activity, that person must be:

(1) on board the same vessel with the permit holder; or

(2) within line-of-sight of the permit holder if not on a vessel.

(d) The permittee and assistant(s) must have in immediate possession a copy of the permit.

(e) No person may be listed as a permittee or assistant to a permittee on more than one valid permit.

(f) Permits may be amended twice yearly.

(g) Requests for amendments must be submitted to the department in writing and should be received 30 days prior to effective date.

(h) All permits issued under this subchapter expire on December 31 of the year issued.

§57.384.Refusal to Issue; Review of Agency Decision to Refuse Issuance.

(a) The department may refuse to authorize any prospective activity on any water body or impose restrictions on permitted species, water bodies, devices, or live transfer if the department determines that:

(1) the prospective take of nongame fish is detrimental to the target species, species listed as endangered or threatened, or any other aquatic species;

(2) the prospective take of nongame fish is likely to increase the risk of transfer or spread of harmful or potentially harmful exotic fish or shellfish;

(3) the prospective take of nongame fish cannot be accomplished in a manner consistent with the management goals and objectives of the department;

(4) the applicant or assistant(s) seeking renewal is not in compliance with provisions of this subchapter; or

(5) the applicant or assistant(s) have been:

(A) convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code or a regulation of the commission; or

(B) convicted, pleaded guilty or nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 - 3378 (the Lacey Act); or

(C) the department has evidence that the applicant is acting on behalf of or as a surrogate for another person not eligible for a permit under this subsection.

(b) An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.

(1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall submit a written request to the department within 10 working days of being notified by the department of permit denial.

(2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.

(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

(A) the Deputy Executive Director for Natural Resources (or his or her designee);

(B) the Director of the Inland Fisheries Division (or his or her designee), as appropriate; and

(C) a department employee designated by the Director of the Inland Fisheries Division.

§57.385.Special Provisions - Shad.

(a) No person may sell, offer for sale, possess for purposes of sale, or exchange for anything of value shad taken from public fresh water unless the person possesses:

(1) a valid permit issued by the department under this subchapter specifically authorizing that activity; or

(2) a valid fishing guide license issued by the department and the shad are being provided to persons engaged in fishing as part of the guide's services.

(b) No person may collect and possess shad taken from public fresh water without a permit issued under this section unless the person possesses a valid recreational fishing license issued by the department and the shad:

(1) are not sold or exchanged for anything of value; and

(2) are possessed:

(A) in a container or containers that in the aggregate constitute 82 quarts or less in volume;

(B) on the waterbody from which the shad were taken and are used as bait; or

(C) by a licensed fishing guide to be provided to persons engaged in fishing as part of the guide's services regardless of the container volume.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 24, 2017.

TRD-201701283

Robert D. Sweeney, Jr.

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: April 13, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 389-4775