TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 53. FINANCE

The Texas Parks and Wildlife Department proposes amendments to §§53.2, 53.14, 53.60, and 53.91, concerning Finance. The proposed amendments are a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

The proposed amendment to §53.2, concerning License Issuance Procedures, Fees, and Exemption Rules, would correct statutory and regulatory cross-references in subsection (a)(3)(B)(iii) and (iv). Current §53.2(a)(3) provides that a person who has acquired a hunting license electronically may hunt prior to obtaining the physical license so long as the person has a valid confirmation number. However, the current provisions in subparagraph (B)(iii) and (iv) regarding hunting on certain public lands and or department-leased land contain inaccurate references to provisions authorizing those public hunting activities. The proposed amendment corrects the inaccuracy.

The proposed amendment to §53.14, concerning Deer Management and Removal Permits would delete the reference to the "antlerless and spike buck control permit application processing fee" since these permits are no longer being issued. The regulations providing for the issuance of antlerless and spike buck control permits were repealed by action of the Parks and Wildlife Commission in March 2016, and published in the August 12, 2016, issue of the Texas Register (14 TexReg 6052). The elimination of the antlerless and spike buck control permit obviates the need for the associated permit application fee.

The proposed amendment to §53.60, concerning Stamps, would modify the references to stamp form, design, and issuance to reflect current practice, and eliminate provisions regarding nongame and endangered species stamps and collector's edition stamps. The department no longer issues collector's edition stamps. Currently, a "stamp" is issued as an endorsement on the appropriate license issued through the department's electronic license sales system. The proposed amendment is necessary to reflect current practice.

The proposed amendment to §53.91, concerning Documented Vessels, would clarify various provisions. The proposed amendment would add the term "certificate of number" in subsection (a) and "participating Tax assessor-Collector office" in subsections (a) - (c) to more accurately describe the locations where vessels may be registered. The proposed amendment also would delete the reference to the tax for vessels greater than 65 feet in length in subsection (c)(3) since the tax on these vessels is not collected by the department. In addition, a reference is to Parks and Wildlife Code, §31.026 would be added to subsection (c)(4) to more completely describe the authority for collection of the appropriate registration fee.

Ann Bright, General Counsel, 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 rules.

Ms. Bright also has determined that for each of the first five years that the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rules will be clearer, better organized, and more accurate regulations governing the processes and entities administered under the provisions of Chapter 53.

There will be no adverse economic effect on persons required to comply with the rules as proposed.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses 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 and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

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.

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.

Comments on the proposed rules may be submitted to Robert Macdonald, Regulations Coordinator, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

SUBCHAPTER A. FEES

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

31 TAC §53.2, §53.14

The amendment is proposed under the authority of Parks and Wildlife Code, §42.006 which authorizes the commission to prescribe by rule requirements relating to the possessing a license issued under Parks and Wildlife Code, Chapter 42; §42.010, which allows the department to issue tags for deer during each year or season; §61.054, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; and §61.057, which authorizes the commission to determine when conditions warrant the issuance of antlerless permits.

The proposed amendments affect Parks and Wildlife Code, Chapters 42 and 61.

§53.2.License Issuance Procedures, Fees, Possession, and Exemptions Rules.

(a) Hunting license possession.

(1) - (2) (No change.)

(3) A person may hunt deer in this state without having a valid hunting license in immediate possession only if that person:

(A) has acquired a license electronically (including by telephone) and has a valid confirmation number in his possession; and

(B) is lawfully hunting:

(i) - (ii) (No change.)

(iii) by special permit under the provisions of Chapter 65, Subchapter H of this title [chapter] (relating to Public Lands Proclamation);

(iv) on department-leased lands under the provisions of Parks and Wildlife Code, §11.0271 [§11.0272]; or

(v) (No change.)

(4) (No change.)

(b) - (f) (No change.)

§53.14.Deer Management and Removal Permits.

(a) - (c) (No change.)

[(d) Antlerless and spike buck deer control permit application processing fee--$378.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606446

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER B. STAMPS

31 TAC §53.60

The amendment is proposed under the authority of Parks and Wildlife Code, §11.055 and §11.056, which authorize, but do not require, the department to issue art decal or stamps; §12.701, which allows the department to authorize the issuance of a license, stamp, permit, or tag by a license deputy; Parks and Wildlife Code, §12.702, which authorizes the commission to set collection and issuance fees by rule for a license, stamp, tag, permit, or other similar item issued under any chapter of the code; §42.010 which requires the department to prescribe the form of and issue the license and tags authorized by Chapter 42.

The proposed amendment affects Parks and Wildlife Code, Chapters 11, 12, and 42.

§53.60.Stamps

(a) Stamp Form, Design and Manner of Issuance. A required stamp shall be issued as an endorsement noted on the license issued through the department's automated system. [Stamp form. Stamp sizes and formats shall be prescribed by the executive director.]

[(b) Stamp Design. An artist's original rendition will be the basic design. Stamps issued by an automated system may be an alternate design as prescribed by the executive director.]

[(c) Stamp Manner of Issuance. The stamp will be issued upon payment of the prescribed fee in a manner determined by the executive director.]

(b) [(d)] Stamp Purchase Identification and Possession Requirements.

(1) A person may hunt without a required state hunting stamp in immediate possession if the person has acquired a stamp electronically (including by telephone) and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.

(2) A person may fish without a required fishing stamp in immediate possession if the person has acquired a stamp electronically (including by telephone) and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.

[(3) A state hunting or fishing stamp issued in an automated manner to a person using the stamp is valid for hunting or fishing purposes without the user's signature on its face.]

(c) [(e)] Stamp Exemptions.

(1) The commission grants the executive director authority to exempt persons participating in any event organized for the primary purpose of promoting participation in fishing or hunting activities from the requirement to purchase or possess the following stamps:

(A) migratory game bird stamp;

(B) archery hunting stamp;

(C) upland game bird stamp;

(D) saltwater sportfishing stamp; and

(E) freshwater fishing stamp.

(2) All nonresident spring turkey hunting license holders are exempt from requirements for acquisition and possession of the upland game bird stamp.

(3) Youth license holders and lifetime resident hunting license holders are exempt from requirements for acquisition and possession of the following stamps:

(A) migratory game bird stamp;

(B) upland game bird stamp; and

(C) archery hunting stamp.

(4) All lifetime resident combination hunting and fishing license holders are exempt from requirements for acquisition and possession of the following stamps:

(A) migratory game bird stamp;

(B) upland game bird stamp;

(C) archery hunting stamp;

(D) saltwater sportfishing stamp; and

(E) freshwater fishing stamp.

(5) All lifetime resident fishing license holders are exempt from requirements for acquisition and possession of the following stamps;

(A) saltwater sportfishing stamp;

(B) freshwater fishing stamp.

(6) All persons meeting the definition of a qualified disabled veteran under the provisions of Parks and Wildlife Code, §42.012(c), are exempt from the fees for the following stamps:

(A) migratory game bird stamp;

(B) upland game bird stamp;

(C) archery;

(D) saltwater sportfishing; and

(E) freshwater fishing.

(7) All Texas residents on active duty in the armed forces of the United States (including members of the Reserves and National Guard on active duty) are exempt from the fees for the following stamps:

(A) migratory game bird stamp;

(B) upland game bird stamp;

(C) archery;

(D) saltwater sportfishing; and

(E) freshwater fishing.

(8) Special fishing license holders are exempt from the requirements for acquisition and possession of the following stamps:

(A) saltwater sportfishing stamp; and

(B) freshwater fishing stamp.

(9) All one-day all-water fishing license holders are exempt from requirements for acquisition and possession of the following stamps:

(A) saltwater sportfishing stamp; and

(B) freshwater fishing stamp.

(d) [(f)] Obsolete Stamps and Decals.

(1) An obsolete stamp is a stamp that is not valid.

(2) [(1)] Obsolete stamps and decals shall be sold for informational purposes, [either] at an established fee for collector's edition stamp package, [or at face value for individual stamps,] plus a processing charge sufficient to recover shipment, postage, and sales tax.

[(2) Stamps and decals shall remain on sale for a maximum of one fiscal year after expiration. During the second year, obsolete stamps and decals shall be sold only by book.]

[(3) Previous issues of Nongame and Endangered Species stamps may be made available for sale at $10 for individual stamps or decals, and $75 or less for a complete set of the 11 stamps issued from 1985 through 1995. The department may sell a limited number of collector's sets of the 11 stamps issued from 1985 through 1995, framed and mounted, for $300 or less per set. The department may add to this price a processing charge sufficient to recover shipment, postage, and sales tax. The Department may give away earlier issues of decals and use previously issued stamps in merchandise items that are offered for sale or as promotional items.]

[(g) Nongame and Endangered Species stamps issued during and after 1996 are one of seven stamps issued as collectors series set and are subject to the same rules as other obsolete stamps.]

[(1) The executive director may maintain a limited number of stamps and decals of each type and year.]

[(2) All other obsolete stamps and decals shall be destroyed.]

(e) [(h)] Collector's edition stamp package.

(1) A collector's edition stamp package shall consist of one each of the following stamps:

(A) migratory game bird stamp;

(B) upland game bird stamp;

(C) nongame stamp;

(D) archery stamp;

(E) saltwater sportfishing stamp; and

(F) freshwater fishing stamp.

(2) Stamps in the package are not valid for hunting or fishing.

(3) Fee for the package shall be $10 wholesale price and $20 retail price plus applicable sales tax.

(f) [(i)] In addition to the freshwater fishing stamp, the department may make available a collectible freshwater habitat stamp for a fee of $5.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606447

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER E. DISPLAY OF BOAT REGISTRATION

31 TAC §53.91

The amendment is proposed under the authority of Parks and Wildlife Code, §§31.024, 31.025, and 31.0341 which provide for the submission of an application to and issuance by the county tax assessor-collector of certificates of number and certificate of title for vessels; Parks and Wildlife Code, §31.026 concerning the establishment of fees by the commission for an original or renewal certificate of number for a vessel; Parks and Wildlife Code, §§31.003(1) and Tax Code, Chapter 160 which does not include vessels greater than 65 feet in length from the provisions regarding the collection of taxes in Parks and Wildlife Code, Chapter 31, and Tax Code, Chapter 160.

The proposed amendments affect Parks and Wildlife Code, Chapter 31 and Tax Code, Chapter 160.

§53.91.Documented Vessels.

(a) A certificate of number and registration decal for a new or newly documented vessel may be obtained at any TPWD boat registration office or participating Tax Assessor-Collector office. At the time of application, applicants must present:

(1) - (4) (No change.)

(b) A certificate of number and registration decal for a used or previously documented vessel may be obtained at any TPWD boat registration office or participating Tax Assessor-Collector office. At the time of application, applicants must present:

(1) - (4) (No change.)

(c) Renewal of certificate of number and registration decal for a documented vessel may be obtained at any TPWD boat registration office. At the time of application, applicants must present:

(1) (No change.)

(2) a copy of the current documentation from the U.S. Coast Guard National Vessel Documentation Center (USCGNVDC) or their website in the current owner's name; and

[(3) for vessels greater than 65 feet in length for the first registration renewal, verification of payment under Tax Code, Chapter 151, or verification from the TPWD boat system; and]

(3) [(4)] payment of the appropriate registration fee as required by Parks and Wildlife Code, §31.026 and §53.16 of this title.

(d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606448

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER A. FEES

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

31 TAC §53.12

The Texas Parks and Wildlife Department proposes an amendment to §53.12, concerning Commercial Fishing Licenses and Tags. The proposed amendment would alter the name of a permit, adding the word "possess" to the permit to sell nongame fish in order to reflect the effect of proposed new §57.385, published elsewhere in this issue of the Texas Register, which if adopted would require persons who collect or possess shad in excess of certain limits to obtain a permit.

Ken Kurzawski, Regulations and Information Programs Director, Inland Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule, consisting of increased revenue to the department resulting from permit fees from persons who would be required to obtain a permit, if proposed new §57.385 is adopted. The department estimates that there are 10 or less persons who would be required to obtain a permit if proposed new §57.385 is adopted. Therefore, the revenue increase to the department as a result of proposed new §57.385 is estimated to be $600 or less per year (the current permit cost is $60 per year). Existing personnel will administer and enforce the rules as part of existing job duties; thus, there will be no costs associated with administering and enforcing the proposed rule.

Mr. Kurzawski 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 accurate fee regulations.

The proposed rule itself does not require anyone to obtain a permit; that requirement is contained in proposed new §57.385; however, there will be an adverse economic effect on persons required to obtain a permit, namely, the $60 fee for the permit.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses 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 proposed rule itself does not require anyone to obtain a permit; that requirement is contained in proposed new §57.385. Although the required analysis is contained in the preamble to that rulemaking, the department includes it here as a convenience. The department has determined that most if not all businesses affected by the proposed rule will be small businesses or microbusinesses. The permit fee is $60. If adopted, proposed new §57.385 would require persons who possess shad taken from public fresh water in containers whose aggregate volume exceeds of 82 quarts to obtain a permit to possess or sell nongame fish. Because permittees are required to annually report the volume of harvest, means and methods of take; the water bodies where taken; and the price received, per pound (if shad are sold), proposed new §57.385, if adopted, would also result in an additional cost to small and microbusinesses associated with reporting, which the department estimates to be $10 or less per year.

The department considered alternative regulatory approaches to achieve the goal of the proposed rule. The department considered status quo. This alternative was rejected because the impacts of large-scale collection activities on shad populations cannot be monitored unless the department is able to quantify harvest impacts, which is impossible without requiring harvest reporting from persons conducting such activities. The department also considered implementing a no-cost permit. This alternative was rejected because the regulatory complexity created by the existence of two permits to regulate the same activity could lead to problematic compliance and enforcement issues.

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 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 Ken Kurzawski, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4591 (e-mail: ken.kurzawski@tpwd.texas.gov) or via the department website at http://tpwd.texas.gov/business/feedback/public_comment/.

The amendment is proposed under Parks and Wildlife Code, Chapter 67, which give 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 proposed amendments affect Parks and Wildlife Code, Chapter 67.

§53.12.Commercial Fishing Licenses and Tags.

(a) - (b) (No change.)

(c) General, finfish, menhaden, mussel, clam, and miscellaneous licenses.

(1) Licenses and permits.

(A) - (J) (No change.)

(K) mussel dredge fee--$36; and

(L) permit to possess or sell non-game fish--$60;

(2) (No change.)

(d) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606460

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER G. MARINE DEALERS, DISTRIBUTORS, AND MANUFACTURERS

The Texas Parks and Wildlife Department proposes the repeal of §53.110 and new §53.110 - 53.115, concerning Marine Dealers, Distributors, and Manufacturers.

The current rule consists of a single section, which the department has determined is unwieldy and difficult to navigate. By repealing the current 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.

Proposed new §53.110, concerning Definitions, retains the provisions of current subsection (a) and adds three new definitions. Proposed new §53.110 (1) would define "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 proposed new rules and a definition is necessary to provide an unambiguous meaning. Similarly, the proposed new rule would provide for definitions of "final conviction" and "licensee." Because proposed new §53.113, concerning Refusal to Issue or Renew Licenses; Review of Agency Decision to Refuse or Renew License, would address 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, proposed new §53.110(3) would define 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, proposed new §53.110(4) would define "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.

Proposed new §53.111, concerning Applicability, would consist of the contents of current §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.

Proposed new §53.112, concerning Application and Issuance, would consist of the contents of current §53.113(c) - (e), which prescribe the documentation required by the department prior to any issuance or renewal of a dealer, distributor, or manufacturer's license.

Proposed §53.112(a) provides that for a dealer license, an applicant would be 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 would be 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 current as well as the proposed new section require verification of what the department has determined are the minimum reasonable expectations necessary to determine 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 current rules require 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 expects 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 affected by the requirements of Parks and Wildlife Code, Chapter 31. The proposed new rule would retain these requirements; however, instead of furnishing the required information for at least five marinas, the proposed new rule would require 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 manufacture license, proposed new §53.112(b) would require a properly completed application form, 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, proposed new §53.112(c) would require 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 proposed 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.

Proposed new §53.113, regarding Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License would set forth new provisions regarding the circumstances under which the department could refuse to issue or renew a dealer, distributor, or manufacturer license, and would implement 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 proposed new section would eliminate the current criteria used by the department to revoke or suspend a license and instead institute new criteria for denial of license issuance or renewal, and implement a review process for license denials.

Under proposed 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 proposed new section also would provide 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, and 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 proposed new section also would allow 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 proposed rule would provide 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 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 license application, and any other pertinent factors.

Finally, the proposed amendment would create 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.

Proposed new §53.114, concerning Suspension or Revocation, would set 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 are recapitulated in the current rule (§53.110(i)(1) - (4)) and would be retained in the proposed new rule. The proposed new rule also would retain current §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 have not been 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 have not been 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 is finally convicted or receives 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 proposed new rule also would explicitly state that revocation or suspension of a license will be conducted pursuant to the requirements of Parks and Wildlife Code, Chapter 12, Subchapter J.

Proposed new §53.115, concerning Recordkeeping, Display of License, and Notification Requirements, would consist of the contents of current §53.110(f) - (h), which require a licensee to notify the department in writing within 10 days if there is any change of ownership, business name, physical location, dealer agreement, distributors, dealers, or representatives, or address or phone information; require licenses to be publicly displayed at all times in the place of business for which the license is issued; require 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 proposed 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.

Cody Jones, Boating Law Administrator, 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 enforcing or administering the rules, as the proposed new rules will not significantly alter the processes currently in place for enforcing and administering the current rules.

Mr. Jones also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be consistent regulations governing the department's administrative processes with regard to license and permit issuance.

There will be no adverse economic effect on persons required to comply with the rules as proposed.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses 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 there will be no adverse economic effects on small businesses or microbusinesses because the proposed rules do not create any requirements in addition to those currently in effect for small businesses or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in 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 rules as proposed will not impact local economies.

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.

Comments on the proposed rules may be submitted to Assistant Commander Cody Jones, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4624 (e-mail: cody.jones@tpwd.texas.gov) or via the department website at http://tpwd.texas.gov/business/feedback/public_comment/.

31 TAC §53.110

The repeal is proposed 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 proposed repeal affects Parks and Wildlife Code, Chapter 31.

§53.110Marine Dealer, Distributors, and Manufacturers

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606450

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


31 TAC §§53.110 - 53.115

The new sections are proposed 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 new sections affect Parks and Wildlife Code, Chapter 31.

§53.110.Definitions.

The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Applicant--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.

(2) Consignment--The sale or offer for sale by a person other than the owner under terms of a verbal or written authorization from the owner.

(3) Final conviction- 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).

(4) Licensee--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.

§53.111.Applicability.

Any person or entity, including a person or entity purporting to be a broker or brokerage house, who acts as an intermediary or assists in the sale, sale on consignment, display for sale, purchase, trade, or transfer of a vessel, motorboat, or outboard motor in exchange for a fee, commission, or other consideration is considered to be engaged in the business of buying, selling, selling on consignment, displaying for sale, or exchanging a vessel for the purposes of this subchapter. Any person or entity, including a person or entity purporting to be a broker or brokerage house, engaged in any activity described above is subject to the provisions of this subchapter.

§53.112.Application and Issuance.

(a) An applicant shall 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;

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

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

(E) 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.

§53.114.Suspension or Revocation.

The department may suspend or revoke a license under this subchapter as provided by Parks and Wildlife Code, Chapter 12, Subchapter F, if:

(1) a licensee has been finally convicted or been assessed an administrative penalty for a violation or condition listed in §53.113(a) of this title (relating to Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License);

(2) the licensee was previously the holder of a license issued under this subchapter that was revoked for cause and never reissued by the department, or that was suspended for cause and the terms of the suspension have not been fulfilled;

(3) the licensee was previously a partner, stockholder, director, or officer controlling or managing a partnership, corporation, or store location whose license issued under this subsection was revoked for cause and never reissued, or was suspended for cause and the terms of the suspension have not been fulfilled;

(4) the business does not intend to be open to all members of the public nor during normal business hours;

(5) 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.

§53.115.Recordkeeping, Display of License, and Notification Requirements.

(a) A licensee shall notify the department in writing within 10 days if there is any change of:

(1) ownership;

(2) business name;

(3) physical location;

(4) dealer agreement;

(5) distributors, dealers, or representatives; or

(6) address or phone information.

(b) The licenses issued under this subchapter to dealers must be publicly displayed at all times in the place of business for which the license is issued.

(c) A licensee must keep a complete record available for inspection in the place of business relating to all vessels, motorboats, and outboard motors purchased, sold, or displayed for sale for a minimum of 24 months. Content of records must include the:

(1) date of purchase;

(2) date of sale;

(3) hull identification number and/or motor identification number;

(4) name and address of person selling to the dealer;

(5) name and address of person purchasing from the dealer;

(6) name and address of selling dealer or individual if vessel and/or outboard motor is offered for sale by consignment;

(7) a copy of the vessel/outboard motor title/registration receipt;

(8) 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

(9) copies of written consignment agreements or power of attorney for vessels, motorboats, or outboard motors.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606451

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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 Department proposes 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.

The proposed amendment to §55.202 would eliminate language in subsection (c) providing for notification and review of permit expiration. The proposed amendment is necessary because proposed 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 current rules the only criteria for denying renewal of a floating cabin permit is if the permittee has allowed a floating cabin permit to expire. Proposed new §55.208 would institute additional criteria for denial of permit renewal, and implement 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.

Proposed new §55.208 would allow 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 proposed new section would allow 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 proposed new rule would provide 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 proposed amendment would create 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.

Cody Jones, Boating Law Administrator, 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 enforcing or administering the rules.

Mr. Jones also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be consistent regulations governing the department's administrative processes with regard to license and permit issuance.

There will be no adverse economic effect on persons required to comply with the rules as proposed.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses 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 there will be no adverse economic effects on small businesses or microbusinesses because the proposed rules will not directly affect small businesses or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in 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 rules as proposed will not impact local economies.

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.

Comments on the proposed rules may be submitted to Assistant Commander Cody Jones, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4624 (e-mail: cody.jones@tpwd.texas.gov) or via the department website at http://tpwd.texas.gov/business/feedback/public_comment/.

The amendment and new section are proposed 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.

The proposed amendment affects Parks and Wildlife Code, Chapter 32.

§55.202.Period of Validity; Renewal and Transfer of Permits.

(a) - (b) (No change.)

(c) Permits that are not renewed within 90 days after expiration will become ineligible for renewal and the affected floating cabin will be subject to removal at the permittee's expense according to the provisions of Parks and Wildlife Code, §32.154. The department shall notify each permittee by certified mail upon determining that a permit has expired and become ineligible for renewal.

[(1) A permittee whose permit has expired and become ineligible for renewal may request a review of the ineligibility status to show why the permit should be renewed. A person seeking a review under this subsection must contact the department within 10 working days after the date that the department issues the notification required by this section.]

[(2) 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 Operations (or his or her designee);]

[(B) the Director of Law Enforcement (or his or her designee); and]

[(C) the Director of the Coastal Fisheries Division (or his or her designee).]

[(3) The decision of the review panel is final.]

(d) - (e) (No change.)

§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

(iv) 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 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 December 9, 2016.

TRD-201606449

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Effective date: January 22, 2017

Proposal publication date: December 23, 2016

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


SUBCHAPTER H. PARTY BOATS

31 TAC §55.404

The Texas Parks and Wildlife Department proposes an amendment to §55.404, concerning Party Boat Operator License--General Provisions.

The proposed amendment would eliminate the current criteria used by the department to refuse issuance or renewal of a party boat operator license, institute new criteria for permit issuance denial, and implement 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 current rule the department will not issue a party boat operator license to any person who has, 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 current rule also prohibits license issuance to a person who is prohibited from holding an equivalent license in another state.

The proposed amendment would eliminate the current automatic prohibition and allow licenses to be issued at the department's discretion; however, the current five-year period of applicability would be eliminated (meaning conviction for a listed offense committed at any time could be a justification for license denial) and the subsection would apply to a wider range of offenses. In addition to the current criteria for license denial, the proposed amendment would provide 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 proposed amendment also would provide 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 would allow 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 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 proposed rule would provide 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 proposed amendment would create 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.

Cody Jones, Boating Law Administrator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

Mr. Jones 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 consistent regulations governing the department's administrative processes with regard to license and permit issuance.

There will be no adverse economic effect on persons required to comply with the rule as proposed.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses 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 there will be no adverse economic effects on small businesses or microbusinesses because the proposed rule will not directly affect small businesses or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in 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 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 Assistant Commander Cody Jones, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4624 (e-mail: cody.jones@tpwd.texas.gov) or via the department website at http://tpwd.texas.gov/business/feedback/public_comment/.

The amendment is proposed 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 proposed amendment affects Parks and Wildlife Code, Chapter 31.

§55.404.Party Boat Operator License--General Provisions.

(a) - (d) (No change.)

(e) Refusal to Issue or Renew License.; Review of Agency Decision to Refuse or Renew License[Denial of license issuance].

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

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

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

(i) Parks and Wildlife Code, Chapter 31, involving reckless or negligent behavior, or behavior that placed passengers in peril.

(ii) 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;

(iii) a violation of Penal Code, Chapter 49 involving the operation of a motorboat;

(iv) a violation of Water Code, §26.121; or

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

(C) 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.

(2) The department will not issue a party boat operator license to a person who is prohibited from holding an equivalent license in another state.

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

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

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

(C) 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;

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

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

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

(G) other mitigating factors.

(4) 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.

(5) 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: Marine Enforcement, 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.

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

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

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

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

[(1) The department will not issue a party boat operator license to any person who has, within the five-year period preceding an application for a party boat operator license, been convicted of:]

[(A) a violation of Penal Code, Chapter 49 involving the operation of a motorboat; or]

[(B) a violation of Parks and Wildlife Code, Chapter 31, involving reckless or negligent behavior, or behavior that placed passengers in peril.]

[(2) The department will not issue a party boat operator license to a person who is prohibited from holding an equivalent license in another state.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606453

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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 Department proposes amendments to §§57.377, 57.379, 57.380, 57.381, and 57.384, and new §57.385, concerning Permits to Sell Nongame Fish Taken from Public Water. 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. Proposed new §57.385, concerning Special Provisions - Shad, would establish a volumetric value for the collection of shad, at or above which a permit would be required, irrespective of whether the harvested shad were sold. Therefore, the department also proposes to change the title of Subchapter E to Permits to Collect or Sell Nongame Fish Taken from Public 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 proposed amendments will allow the department to monitor any impacts to the resource. In addition, the proposed amendments alter provisions regarding the department's actions regarding issuance and renewal of permits.

The proposed amendment to §57.377, concerning Definitions, would define "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 proposed amendment to §57.379, concerning Prohibited Acts, would replace 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 proposed amendment to §57.380, concerning Permit Application, would streamline language, add a cross-reference to department regulations concerning fees, and provide for up to eight persons to be named on a permit as assistants to the permittee in the conduct of permitted activities. Current subsection (a) refers to "a permit to sell nongame fish taken from public fresh waters of this state." The department has 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 it everywhere. Instead, the department believes it is simpler and easier to simply refer to "permits issued under this subchapter." Similar changes are made in the proposed amendments to §57.381. The proposed amendment also would alter 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 proposed amendment would allow a permittee to designate up to eight individuals to assist the permittee in the conduct of permitted activities. Under current rule, a permittee is authorized to name up to two additional persons to assist in the conduct of permitted activities; however, a permit amendment is required if a permittee wishes 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 proposed amendment to §57.381, concerning Permit Specifications and Requirements, would require 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 time 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 proposed amendment also makes nonsubstantive changes as previously described in the discussion of the proposed amendment to §57.380.

The proposed amendment to §57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance, would allow 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 had 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 proposed amendment also would allow for the refusal of permit issuance to persons whom the department has evidence to believe is attempting to obtain a permit on behalf of or as a surrogate for another person not eligible to obtain a permit. Under the current rule, the department may 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 proposed amendment would authorize 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.

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

Proposed new §57.385(a) would prohibit 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 current rule, it is unlawful to sell any nongame fish taken from public water without an appropriate fishing license and permit for that activity; thus the proposed new provision is not substantive.

Proposed new §57.385(b) would prohibit, 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 would not be required if the shad were not sold or exchanged for anything of value, if the shad were used only as bait on the waterbody where they were collected, or 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.

Ken Kurzawski, Regulations and Information Programs Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be fiscal implications to state government as a result of enforcing or administering the rules, consisting of increased revenue to the department resulting from permit fees from persons who would be required to obtain a permit under the proposed rules. The department estimates that there are 10 or less persons who would be required to obtain a permit as a result of the proposed rules. Therefore, the revenue increase to the department as a result of the proposed rules is estimated to be $600 or less per year (the current permit cost is $60 per year). Existing personnel will administer and enforce the rules as part of existing job duties; thus, there will be no costs associated with administering and enforcing the proposed rules.

Mr. Kurzawski also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be the management and protection of nongame fisheries resources.

There will be an adverse economic effect on persons required to comply with the rule as proposed, namely, the $60 fee for a permit.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses 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 most if not all businesses affected by the proposed rules will be small businesses or microbusinesses. The department estimates that there are 10 or less persons who would be required to obtain a permit as a result of the proposed rules. The proposed rules would require persons who possess shad taken from public fresh water in containers whose aggregate volume exceeds of 82 quarts to obtain a permit to possess or sell nongame fish. The permit is an annual permit and the permit fee is $60. Because permittees are required to annually report the volume of harvest, means and methods of take; the water bodies where taken; and the price received, per pound (if shad are sold), the proposed amendments would also result in an additional cost to small and microbusinesses associated with reporting, which the department estimates to be $10 or less per year.

The department considered alternative regulatory approaches to achieve the goal of the proposed rules. The department considered status quo. This alternative was rejected because the impacts of large-scale collection activities on shad populations cannot be monitored unless the department is able to quantify harvest impacts, which is impossible without requiring harvest reporting from persons conducting such activities. The department also considered implementing a no-cost permit. This alternative was rejected because the regulatory complexity created by the existence of two permits to regulate the same activity could lead to problematic compliance and enforcement issues.

The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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.

Comments on the proposed rule may be submitted to Ken Kurzawski, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4591 (e-mail: ken.kurzawski@tpwd.texas.gov) or via the department website at http://tpwd.texas.gov/business/feedback/public_comment/.

The amendments and new section are proposed under Parks and Wildlife Code, Chapter 67, which give 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 proposed amendments and new rule affect Parks and Wildlife Code, Chapter 67.

§57.377.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (4) (No change.)

(5) Shad--Gizzard and threadfin shad (Dorosoma spp.).

§57.379.Prohibited Acts.

Except as provided [exempted] by this subchapter it is unlawful for any person to:

(1) - (5) (No change.)

§57.380.Permit Application.

(a) An applicant for a permit under this subchapter [to sell nongame fish taken from public fresh waters of this state] shall submit a completed application to the department on a form supplied by the department, accompanied by the nonrefundable fee specified in Chapter 53 of this title (relating to Finance).

(b) The application must be received by the department at least 30 days before the proposed activity.

(c) An application may designate no more than eight persons, in addition to the applicant, to assist in conducting permitted activities.

§57.381.Permit Specifications and Requirements.

(a) A permit issued under this subchapter [by the department to sell nongame fish taken from public fresh water] 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 [these rules] 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: [A permit may list no more than two persons, in addition to the permittee, who may assist in conducting the permitted activity.]

(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) - (g) (No change.)

(h) All permits issued under this subchapter [ these rules] 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: [The department may refuse permit issuance or renewal if:]

(1) The prospective take of nongame fish is [determined by the department to be] 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) [(2)] the prospective take of nongame fish cannot be accomplished in a manner consistent with the management goals and objectives of the department;

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

(5) [(4)] 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) (No change.)

§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 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 proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606461

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


CHAPTER 59. PARKS

SUBCHAPTER A. PARK ENTRANCE AND PARK USER FEES

31 TAC §§59.2 - 59.4

The Texas Parks and Wildlife Department proposes amendments to §§59.2-59.4, concerning State Parks. The proposed amendments are a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review. The proposed amendments are nonsubstantive and intended to clarify regulatory provisions. The department wishes to stress that the rules as proposed will not result in additional fees or increased fees at any park and are strictly nonsubstantive in that regard.

The proposed amendment to §59.2, concerning Park Entrance Fees, would delete references to a "permit"" in subsection (a). In parks at which a fee is required for park entrance, the department has determined that it is more accurate to describe the fee as an entrance fee, rather than a permit fee. The proposed amendment also would alter subsection (a)(3) to eliminate the reference to an overnight facility use fee since such fees are addressed in §59.4. The proposed amendment also would replace the word "imposed" in subsection (b) with the more accurate term "collected" to clarify that that fee is actually collected, rather than imposed.

The proposed amendment to §59.3 concerning Park Entry Passes, would delete the reference to a "tour" fee since that fee is addressed in §59.4(c)(7). In addition, the proposed amendment would delete the word "other" from paragraph (1)(A)(ii) and (iii) because it is unnecessary in describing the number of persons authorized to enter a park by an annual park pass. Similarly, "motorcycle" is added to the list of means by which persons may enter a park other than a vehicle in paragraph (1)(A)(iii) and the word "guided" is deleted from paragraph (1)(B)(ii), since not all tours in parks are guided. The proposed amendment would also remove reference to an "order of" the department's executive director from paragraphs (1)(D) and (2)(C) since the executive director may document the establishment of the referenced fee by a method other than an executive order.

The proposed amendment to §59.4, concerning Activity and Facility Use Fees, would combine the group day use facility fee in subsection (b)(3) with the group day use area fee in subsection (b)(4) and remove the reference to "recreation/meeting hall/dining hall" in subsection (b)(3) to better describe the facilities for which the fee is imposed. In addition, the proposed amendment would move the fee for group use of a swimming pool facility from subsection (c)(2)(C) to subsection (b)(8) since other group fees are located in subsection (b). The proposed amendment also would alter subsection (c)(7) by removing the detailed description of types of tours and simply refer to "tour fees." The proposed amendment also would alter subsection(c)(7) to replace "$.25" with the more accurate "$0.25."

Kevin Good, Special Assistant to the Division Director of the State Parks Division, 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 enforcing or administering the proposed rules.

Mr. Good also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be clearer, more understandable rules to enhance recreational benefits to the park-going public, consistent management of state park concessions, and the protection of habitats and ecosystems on department lands for the enjoyment of the public.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed. 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 rules 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 rules.

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.

Comments on the proposed rules may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Kevin Good, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4415 (e-mail: kevin.good@tpwd.texas.gov).

The amendments are proposed under Parks and Wildlife Code, §11.027(e), which authorizes the commission to establish by rule for the collection of a fee for entering, reserving, or using a facility or property owned or managed by the department; §13.015(a), which authorizes the commission to set park user fees for park services; §13.018(e), which requires the commission to establish by rule the eligibility requirements and privileges available to the holder of a state parklands passport; and §13.0191, which authorizes the department to set fees for the use of a facility or lodging at a state park in an amount to recover the direct and indirect costs of providing the facility or lodging and provide a reasonable rate of return to the department.

The proposed rules affect Parks and Wildlife Code, Chapter 13.

§59.2.Park Entrance Fees.

(a) An entrance/day use [permit] fee may be levied at a state park as provided in this section.

(1) Payment of an [An] entrance/day use fee [permit] allows unlimited entry privileges to a person for the period of time specified by the park [permit].

(2) (No change.)

(3) Entry [When an overnight facility use fee has been paid in addition to an entry fee, entry] privileges cease at closing time on the day of checkout, unless the executive director has approved an alternative timeframe, which shall be clearly posted at the park.

(b) An entrance fee of $1.00 - $15.00 per person may be collected [imposed] at designated parks.

(c) (No change.)

§59.3.Park Entry Passes.

Park entry passes authorize entry privileges to parks where entry fees apply but are not valid for [tour,] activity or other applicable fees.

(1) Annual Park Entrance Passes.

(A) A valid annual park entrance pass authorizes park entry without payment of an individual entrance fee for the holder of the annual pass, and:

(i) (No change.)

(ii) up to 14 [other] persons accompanying the pass holder in the same boat if the holder of the annual park entrance pass is entering by boat; or

(iii) up to 14 [other] persons accompanying the pass holder if the holder of the annual park entrance pass is entering by motorcycle, bicycle or on foot.

(B) An annual park entrance pass is valid only for private, noncommercial use and is not valid for:

(i) (No change.)

(ii) commercial use such as [guided] tour groups.

(C) (No change.)

(D) The fee for an annual park entrance pass shall be established by [order of] the executive director within the range of $50 - $100.

(E) (No change.)

(2) Youth Group Annual Entrance Pass.

(A) - (B) (No change.)

(C) The fee for a pass under this subsection shall be established by [order of] the executive director within the range of $50 - $300.

(D) (No change.)

(3) State Parklands Passport. A state parklands passport shall be issued at no cost to any person meeting the criteria established by Parks and Wildlife Code, §13.018.

(A) - (D) (No change.)

(E) The department may collect [impose] a fee for a replacement state parklands passport.

§59.4.Activity and Facility Use Fees.

(a) (No change.)

(b) Fee ranges - facility use:

(1) - (2) (No change.)

(3) group day use facility or area [(recreation/meeting hall/dining hall)] - $15 [$50] - $1,000;

[(4) group day use area - $17-$200;]

(4) [(5)] group overnight use facility(bunkhouses, barracks, campsites, shelters), variable by facility type or number of occupants - $100 - $1,500;

(5) [(6)] bunkhouse/hotel/motel room - $35-225;

(6) [(7)] excess vehicle parking(per vehicle) - $1.00-$6.00(parking areas designated by park superintendent);

(7) [(8)] (excess occupancy fee (in addition to facility use fee), per person - $1.00-$25;

(8) swimming pool facility $35 - $750.

(c) Fee ranges - activities:

(1) (No change.)

(2) swimming pools use:

(A) - (B) (No change.)

[(C) group use(before or after normal operating hours) - $35-$750]

(3) - (6) (No change.)

(7) tour fees [(educational, interpretive, instructional, adventure and/or entertainment or any combination of fees packaged into one rate for park-specific special events up to and including multi-night visitation, food, accommodations, increased staffing, special preparations or equipment, or similar considerations)] per person - $0.25 [$.25] - $1,000;

(8) - (9) (No change.)

(d) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606452

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


CHAPTER 69. RESOURCE PROTECTION

SUBCHAPTER A. ENDANGERED, THREATENED, AND PROTECTED NATIVE PLANTS

31 TAC §69.2, §69.8

The Texas Parks and Wildlife Department (the department) proposes the repeal of §69.6 and amendments to §§69.2, 69.8, 69.26, 69.102, 69.116, 69.121, 69.301 and 69.405, concerning Resource Protection. The proposed amendments are a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

The proposed repeal of §69.6, concerning Permit and Tag, would eliminate a duplicative provision regarding the fee for a commercial plant permit. Over the years, the department has sought to locate regulations regarding most department fees in 31 TAC Chapter 53. In 2004, the fee for the commercial plant permit was adopted as part of §53.15 (29 TexReg 6309) and is now at §53.15(h)(1) (see, 34 TexReg 5381). Therefore, §69.6 is duplicative and unnecessary.

The proposed amendment to §69.2, concerning Scientific Plant Permit, would correct a cross-reference in subsection (d)(2) regarding the letter of permission required to engage in regulated activities on public land. The requirement to obtain a letter of permission is contained in subsection (c)(3) rather than subsection (b)(3). The proposed amendment corrects that error.

The proposed amendment to §69.8, concerning Endangered and Threatened Plants, would remove Johnston's frankenia (Frankenia johnstonii) from the list of endangered species of plants in subsection (a) and add the Neches River rose-mallow (Hibiscus dasycalyx) to the list of threatened species of plants in subsection (b). Under Parks and Wildlife Code, Chapter 88, a species of plant is endangered, threatened, or protected if it is indigenous to Texas and (1) listed by the federal government as endangered, or (2) designated by the executive director of the Texas Parks and Wildlife Department as endangered, threatened or protected. At the current time, the department maintains a single list of endangered plants that contains only those plants indigenous to Texas listed by the federal government as endangered. The proposed amendment removes the Johnston's frankenia from the endangered species list because this species has been removed from the federal endangered species list.

The proposed amendment to §69.26, concerning Commercial Species--Recovery Value, would alter subsection (a) by adding a mechanism for calculating the value of alligator eggs. Parks and Wildlife Code, §12.301, provides that a "person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of this code or a proclamation or regulation adopted under this code is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured." Parks and Wildlife Code, §12.302, requires the commission to adopt rules "to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds and animals." The current per-foot calculation applicable to alligators does not accurately reflect the commercial value of alligator eggs. Therefore, the proposed amendment would add a mechanism for more accurately calculating the value of alligator eggs based on the market price and the survival rate of hatchlings.

The proposed amendments to regulations in Subchapter H, concerning Issuance of Marl, Sand and Gravel Permits would make several nonsubstantive changes. The proposed amendment to §69.102, concerning Definitions, would replace the reference to TNRCC in paragraph (8) with the current agency name, Texas Commission in Environmental Quality. The proposed amendment to §69.116, concerning Conditions, would correct cross-references, replacing "§65.115(b)" with "§69.115(a)" and "§69.101" with "§69.118." The proposed amendment to §69.121, concerning Prices, would delete an outdated reference to the previous royalty of 6.25% in subsection (a) and replace "$.20 ton" with the more accurate "$0.20 ton."

The proposed amendment to §69.301, concerning Definitions, would update taxonomical information regarding the definition of "raptor" in paragraph (3). From time to time the scientific community reclassifies an organism in light of consensus and/or emerging science. Scientific reclassification or change in nomenclature of taxa at any level in the taxonomic hierarchy does not, in and of itself, affect the status of a species as endangered, threatened or protected, but the department believes that the common and scientific names of listed organisms should reflect the most current agreement by the scientific community. Current §69.601(3) defines raptor by reference to the order Falconiformes or Stringiformes. However, the classification of Falconiformes has been split into two orders, Accipitriformes (eagles, hawks, kites, harriers, osprey, secretary bird, etc.) and Falconiformes (all falcons, caracaras). In addition, all New World Vultures have been placed into their own Order, Cathartiformes, based upon recent phylogenetics research. The proposed amendment would make these taxonomic changes. Strigiformes remains unchanged.

The proposed amendment to §69.405, concerning Permit Renewal, eliminates a reference to a duplicative and inaccurate provision regarding the nongame species fee in §53.15(c)(5) and (6). Over the years, the department has sought to locate regulations regarding most fees department fees in 31 TAC Chapter 53. In 2004, the fee for a nongame species permit and permit renewal was included in the fees relocated to §53.15 (29 TexReg 6309), and was increased to $210 in 2009 and redesignated as §53.15(c)((5) and (6) (see, 34 TexReg 5381).

Ann Bright, General Counsel has determined that for each of the first five years the repeal and amendments as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

Ms. Bright has also determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rules will be clearer, better organized, and more accurate regulations governing the processes and entities administered under the provisions of Chapter 69.

There will be no adverse economic impact on persons required to comply with the rule as proposed.

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. 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 small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses 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 and/or micro-businesses. 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 rules 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 rules.

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.

Comments on the proposed rules may be submitted to Mr. Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4770, e-mail: robert.macdonald@tpwd.texas.gov or on the department website at www.tpwd.texas.gov.

The amendments are proposed under Parks and Wildlife Code, §88.006, which requires the department to adopt regulations to administer the provisions of Parks and Wildlife Code, Chapter 88.

The proposed amendments affect Parks and Wildlife Code, Chapter 88.

§69.2.Scientific Plant Permit.

(a) - (c) (No change.)

(d) Special provisions.

(1) (No change.)

(2) While conducting any permit activities on public lands, each person named on a permit shall carry copies of the permit and the letter of permission required by subsection (c)(3) [(b)(3)] of this section, and shall produce such documents upon demand by a game warden.

(3) - (4) (No change.)

§69.8.Endangered and Threatened Plants.

(a) The following plants are endangered:

Figure: 31 TAC §69.8(a)

(b) - (c) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606455

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


31 TAC §69.6

The repeal is proposed under Parks and Wildlife Code, §88.006, which requires the department to adopt regulations to administer the provisions of Parks and Wildlife Code, Chapter 88.

The proposed repeal affects Parks and Wildlife Code, Chapter 88.

§69.6.Permit and Tag Fees.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606454

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER B. FISH AND WILDLIFE VALUES

31 TAC §69.26

The amendment is proposed under Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds and animals.

The proposed amendment affects Parks and Wildlife Code, Chapter 12.

§69.26.Commercial Species-Recovery Value

(a) Recovery of value for commercial species is based on the following: [ex-vessel or dockside price (by weight or individual as normally determined), or for alligators, current per-foot market value.]

(1) ex-vessel or dockside price (by weight or individual as normally determined);

(2) for alligators, current per-foot market value; and

(3) for alligator eggs, a number derived by multiplying the current market alligator egg price by the current percentage of successful hatchlings per 100 eggs.

(b) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606456

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER H. ISSUANCE OF MARL, SAND, AND GRAVEL PERMITS

31 TAC §§69.102, 69.116, 69.121

The amendments are proposed under Parks and Wildlife Code, §86.020, which authorizes the commission to adopt rules governing applications, fees, and permits to disturb, take or carry away marl, sand, gravel, shell or mudshell, sand, shell and gravel.

The proposed amendments affect Parks and Wildlife Code, Chapter 86.

§69.102.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) - (7) (No change.)

(8) River segment--Reach of river and tributaries as designated by the Texas Commission on Environmental Quality (TCEQ) [TNRCC] based on flow and water quality attributes in the Surface Water Quality Standards.

(9) - (10) (No change)

§69.116.Conditions.

A general permit may be authorized for an activity listed in §69.115(a) [§69.115(b)] of this title (relating to General Permits [Permit]), provided that the proposed activity:

(1) - (2) (No change.)

(3) will be conducted in compliance with the best management practices set forth in §69.118[§69.101] of this title (relating to Best Management Practices).

§69.121.Prices.

(a) The commission, with the approval of the governor, establishes a minimum royalty of $0.20 [$.20] ton for sedimentary materials. The permittee shall pay the minimum royalty or a percent royalty of 8.0% [6.25%] on the average selling price per ton sold calculated on a monthly basis, whichever is higher. [The percent royalty shall increase to 8.0% on September 1, 1996.]

(1) - (3) (No change.)

(b) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606457

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER J. SCIENTIFIC, EDUCATIONAL, AND ZOOLOGICAL PERMITS

31 TAC §69.301

The amendment is proposed under Parks and Wildlife Code, §43.022, which requires the commission to adopt rules governing the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, zoological collection, rehabilitation and educational display.

The proposed amendment affects Parks and Wildlife Code, Chapter 43.

§69.301.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) - (2) (No change.)

(3) Raptor--A bird of the order Falconiformes, Accipitriformes, Cathartiformes, or Strigiformes.

(4) - (7) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606458

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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


SUBCHAPTER K. SALE OF NONGAME SPECIES

31 TAC §69.405

The amendment is proposed under Parks and Wildlife Code, §67.004 and §67.0041, which requires the commission to establish by regulation any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species, and authorizes the department to issue permits for the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife, and to establish fees for such permits.

The proposed amendment affects Parks and Wildlife Code, Chapter 67.

§69.405.Permit Renewal.

(a) A person possessing a permit issued under this subchapter may renew that permit by submitting a completed permit renewal form to the department, accompanied by a permit renewal fee specified in §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits [of $200]. A permit renewal shall be valid for one year.

(b) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606459

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 22, 2017

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