TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 51. EXECUTIVE

SUBCHAPTER G. NONPROFIT ORGANIZATIONS

31 TAC §§51.161 - 51.167

The Texas Parks and Wildlife Department proposes amendments to §§51.161 - 51.167, concerning Nonprofit Organizations.

The Parks and Wildlife Code authorizes the department to work with nonprofit organizations to carry out the mission of the department. Parks and Wildlife Code, §11.202, requires the Parks and Wildlife Commission (the commission) to adopt rules to "establish the best practices for nonprofit partners." Parks and Wildlife Code, §11.203, requires the commission to adopt rules regarding "state standards and safeguards for accounting for state assets held by the nonprofit partner." Parks and Wildlife Code, §11.205, authorizes the commission to designate an official nonprofit partner dedicated to meeting department goals. Parks and Wildlife Code, §11.205(f), requires the commission to establish by rule guidelines for the official nonprofit partner's solicitation and acceptance of sponsorships and the best practices of the official nonprofit partner.

Similarly, Government Code, Chapter 2255, requires a state agency to adopt rules regarding the relationship between donors and the agency, including the agency's employees if the agency is authorized to accept donations or if "a private organization exists that is designed to further the purposes and duties of the agency." Tex. Gov't Code, §2255.001(a).

Nonprofit partners serve an important function for the department. These organizations provide valuable financial and in-kind support to the department.

The current rules, promulgated in 2007, categorize each of the department's nonprofit partners as a general nonprofit partner (GNP), a closely related nonprofit partner (CRNP), or the official nonprofit partner (ONP). A general nonprofit partner is a nonprofit partner that is not a closely-related nonprofit partner or the official nonprofit partner and has an agreement of any kind with the department, has a representative serving on a department or commission advisory committee, or otherwise has a relationship with the department. A closely related nonprofit partner is a nonprofit partner whose primary purpose is to benefit a specific department property, facility or program. Closely related nonprofit partners include "friends groups" (e.g., Friends of Cedar Hill, Friends of San Angelo State Park). The official nonprofit partner is the entity designated as the official nonprofit partner of the department by the commission in accordance with Texas Parks and Wildlife Code, §11.205. In 2001, the commission designated the Texas Parks and Wildlife Foundation as the department's official nonprofit partner. Because the ONP and CRNPs enjoy a closer relationship with the department, the rules impose additional requirements on those organizations. The term "nonprofit partner" refers collectively to GNPs, CRNPs and the ONP.

The department has determined that in practice, the category of GNP is superfluous and therefore unnecessary. Listing GNP's produces little useful information to the department and is problematic in light of the time and expense incurred by the department with respect to recordkeeping and reporting functions. Accordingly, the proposed amendments would eliminate the category of GNP, all provisions applicable to GNPs, and all references to GNPs. Additionally, in the interest of clarity the proposed amendments would eliminate individual references to the ONP and CRNPs and instead refer to those entities generically as Nonprofit Partners (NPs), where appropriate.

The proposed amendment to §51.161, concerning Definitions, would eliminate the definition for General nonprofit partner (GNP) and make nonsubstantive conforming changes as necessary.

The proposed amendment to §51.162, concerning Criteria and General Requirements, would remove provisions relating to the designation and listing of General Nonprofit Partners and make nonsubstantive conforming changes as necessary.

The proposed amendment to §51.163, concerning Best Practices (General), would eliminate provisions pertaining to GNPs and make nonsubstantive conforming changes as necessary.

The proposed amendment to §51.164, concerning Best Practices (Officers and Directors), would remove individual references to the ONP and CRNP and replace them with a generic reference to Nonprofit Partners (NPs). The proposed amendment also would make nonsubstantive conforming changes as necessary.

The proposed amendment to §51.165, concerning Best Practices (Fundraising), would make nonsubstantive edits to clarify existing best practices for nonprofit partner fundraising.

The proposed amendment to §51.166, concerning Best Practices (Sponsorship), would require NPs to comply with non-regulatory written guidance from the department in addition to the requirements of the rules. The department has determined that the rules cannot address every possible scenario in detail; thus, the department intends to create supporting guidance to do so. The proposed amendment also would allow for written approval of sponsorship recognition to be provided by department employees other than regional directors, which is intended to accommodate organizational differences within the department, since the position of regional director does not exist in every division within the agency. The proposed amendment also would make nonsubstantive conforming edits as necessary.

The proposed amendment to §51.167, concerning Department Procedures, would eliminate provisions related to General Nonprofit Partners and add a proviso to subsection (b) that the department will not obligate NP funds except by written, signed agreement. The proposed amendment would also remove the word "hold" from subsection (b) because the department can obligate but not hold such funds.

Kevin Good, Special Assistant to the Director of State Parks, 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 proposed amendments.

Mr. Good 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 the elimination of unnecessary regulations and more clear language governing the processes and entities administered under the provisions of Chapter 51, Subchapter G.

There will be no adverse economic impacts to 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, micro-businesses, and rural communities. 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. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" 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 because the rules apply only to entities that enter into voluntary agreements to assist the department (nonprofit partners), there will be no adverse economic effects on small businesses, microbusinesses, or rural communities. 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 there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

In compliance with the requirements of Government Code, §2001.024, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; not create any new regulations; not expand, limit, or repeal an existing regulation; neither increase nor decrease the number of individuals subject to regulation; and will have neither a negative nor positive impact on the state's economy.

Comments on the proposed rule may be submitted to Kevin Good, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4415 (e-mail: kevin.good@tpwd.texas.gov) or on the department's website at www.tpwd.texas.gov.

The rules are proposed under the authority of Parks and Wildlife Code, §§11.202, 11.203, 11.205, and Government Code, §255.001.

The proposed rules affect Parks and Wildlife Code, §§11.202, 11.203, 11.205, and Government Code, §255.001.

§51.161.Definitions.

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

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

[(6) General nonprofit partner (GNP)--A nonprofit partner that is neither a closely-related nonprofit partner nor the official nonprofit partner.]

(6) [(7)] Gift--A donation of money or property other than volunteer time for which there is no consideration or expectation of consideration in return.

(7) [(8)] Improvement--A permanent addition to real property which is in the nature of a fixture.

(8) [(9)] IRS 990--United States Internal Revenue Service Form 990, Return of Organization Exempt from Tax.

(9) [(10)] In-kind donation--A non-cash donation, such as services, personal property or real property.

(10) [(11)] Local sponsorship--A campaign to raise funds in support of a department program that is intended to benefit a single department facility.

(11) [(12)] Nonprofit entity--An incorporated entity that is exempt from federal taxation under §501(c) of the Internal Revenue Code of 1986 (Title 26, United States Code).

(12) [(13)] Nonprofit partner (NP)--A nonprofit entity as defined by Parks and Wildlife Code, §11.201(1) that has been designated by the commission as a nonprofit partner of the department pursuant to Texas Parks and Wildlife Code, §11.202. "Nonprofit partners" include [general nonprofit partners,] closely-related nonprofit partners and the official nonprofit partner.

(13) [(14)] Official nonprofit partner (ONP)--An entity designated as the official nonprofit partner of the department by the commission in accordance with Parks and Wildlife Code, §11.205.

(14) [(15)] Program--An activity, event or project undertaken by a nonprofit partner for the benefit of the department.

(15) [(16)] Regional director--A department manager who reports directly to a department division director and is responsible for the management of the portion of a division covering a defined geographic area of the state.

(16) [(17)] Sponsor--A person, corporation, company, or other organization that provides funds in support of a specific department project, program or event.

(17) [(18)] Sponsorship--The payment of money, transfer of property, or performance of services by a person, corporation, company, or other organization with respect to which there is no arrangement or expectation of any substantial return benefit other than recognition or a non-substantial benefit.

(18) [(19)] Statewide sponsorship--A sponsorship or campaign to raise funds in support of a department program that is intended to benefit more than a single department facility or is intended to reach the majority of the population of the state.

§51.162.Criteria and General Requirements.

[(a)] All NPs must meet the requirements and criteria of this section [subsection].

(1) In order to be considered a NP of the department, the nonprofit organization must be designated by the commission voting in a public meeting. The commission will designate an ONP, as necessary.

[(2) In order to maintain a current list of all nonprofit entities associated with the department, the commission will seek to designate as a GNP all non-profit partners, other than CRNPs and the ONP, that have an agreement of any kind with the department, have a representative serving on a department or commission advisory committee, or otherwise have a relationship with the department.]

(2) [(3)] The commission may remove a nonprofit partner from the NP list.

(3) [(4)] All NPs must carry out the fiscal, business, legal, and tax responsibilities of a nonprofit entity as required by state and federal law.

(4) [(5)] [All] NPs must have obtained from the Internal Revenue Service a valid determination letter that it is an organization described in §501(c) of the Internal Revenue Code of 1986 (Title 26, United States Code), as amended. Such a letter must be obtained no later than 180 days after being designated by the commission as a NP.

(5) [(6)] A [All] NPs' work with the department must be consistent with the department's mission and goals.

(6) [(7)] Upon dissolution, a NP may be required to dispose of funds raised for the benefit of the department in a way that will benefit the department, in accordance with applicable law.

[(b)] [In addition to the requirements and criteria stated in subsection (a) of this section, CRNPs and the ONP must comply with the requirements and criteria of this subsection.]

(7) [(1)] CRNPs and the ONP must be incorporated in accordance with the Texas Nonprofit Corporation Act (Business Organizations Code, Chapter 22).

(8) [(2)] Within 60 days of its designation as a nonprofit partner, each NP [CRNP and the ONP] must enter into an agreement with the department detailing the responsibilities and duties of the nonprofit partner and the department. Each NP [CRNP and the ONP] must maintain such an agreement with the department for as long as the entity is designated as a NP [CRNP or the ONP]. The agreement may also address the obligations of a NP [CRNP or the ONP] upon termination of the relationship [with] between the NP [CRNP or the ONP] and the department, including termination resulting from the dissolution of the NP [CRNP or the ONP].

(9) [(3)] NPs [CRNPs and the ONP] must promptly notify the department of any change in its legal or tax-exempt status.

§51.163.Best Practices (General).

(a) [All] NPs must comply with the general best practices prescribed in this subsection.

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

[(b)] [In addition to subsection (a) of this section, NP must comply with the general best practices prescribed in this subsection.]

(6) [(1)] NPs [CRNPs and the ONP] shall conduct business in a way that will ensure public access and transparency. As used in this subsection, "transparency" shall mean that the CRNP's and ONP's business practices and internal processes are conducted in a way that is open, clear, measurable, and verifiable.

(7) [(2)] NPs [CRNPs and the ONP] shall file with the department and make available to the public an annual report that includes a list of the primary activities undertaken during the previous year, a summary of significant achievements and challenges over the previous year, and other information requested by the department.

(8) [(3)] Regardless of whether a NP [CRNP or the ONP] is required to file an IRS 990 with the Internal Revenue Service, each NP [CRNP and the ONP] must complete and file an IRS 990 with the department each year, regardless of income[, and must make the IRS 990 available to the general public, upon request].

(9) [(4)] NPs [CRNPs and the ONP] shall file with the department its articles of incorporation, by-laws, and most recent financial statements, and any updates to these documents[, and shall make these documents available to the public,] upon request of the department.

(10) [(5)] NPs [CRNPs and the ONP] shall not engage in activities that would require it or a person acting on its behalf to register as a lobbyist under Texas law, Texas Government Code, Chapter 305. However, this subsection is not intended to restrict NPs [CRNPs and the ONP] from providing information to the legislature or to other elected or appointed officials.

(11) [(6)] NPs [CRNPs and the ONP] shall not donate funds to a political campaign or endorse a political candidate.

(12) [(7)] NPs [CRNPs and the ONP] shall notify the department of all meetings and allow a department representative to attend all meetings, including, but not limited to, meetings of its general membership, managing board, and committees. Meeting notices must be provided to the department sufficiently in advance of the meeting so that the department representative has ample opportunity to attend. Such notice may be provided by letter, email, or telephone. A CRNP should also notify other CRNPs associated with the property, facility, or program of all meetings and allow a representative to attend.

(b) [(c)] In addition to subsection (a) [subsections (a) and (b)] of this section, the ONP must comply with the general best practices prescribed in this subsection.

(1) The ONP must have an annual audit by an independent accounting firm and shall make the results of that audit available to the department.

(2) The ONP must maintain an adequate directors and officers liability insurance policy.

§51.164.Best Practices (Officers and Directors).

(a) (No change.)

(b) In addition to subsection (a) of this section, CRNPs and the ONP must comply with the best practices regarding officers and directors as prescribed in this section.

(1) NPs [CRNPs and the ONP] must adopt and maintain a conflict of interest policy, which includes safeguards to prevent board members or their families from benefiting financially from any business decision of the CRNP or the ONP.

(2) NPs [CRNPs and the ONP] shall ensure that any compensation paid to executives or managers is reasonable.

(3) NPs [CRNPs and the ONP] shall not elect or designate or otherwise select a department employee as an officer or director, other than as a non-voting uncompensated representative of the department.

(4) NPs [CRNPs and the ONP] shall hold regular meetings of its Board of Directors.

(5) NPs [CRNPs and the ONP] shall ensure that each board member and/or director is fully informed of activities and shall provide the following information to new board members:

(A) articles of incorporation and by-laws;

(B) most recent financial statements;

(C) department rules on NPs and sponsorship; and

(D) current agreements with the department.

§51.165.Best Practices (Fundraising).

(a) All NPs must comply with the requirements of this subsection regarding fundraising.

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

(4) Funds accepted by a NP [on behalf of or] for the benefit of the department are to be managed as a reasonably prudent person would manage funds if acting on his or her own behalf and such funds are to be accounted for according to Generally Accepted Accounting Principles (GAAP).

[(b)] [In addition to subsection (a) of this section, CRNPs must comply with the provisions of this subsection.]

(5) [(1)] All projects undertaken for the department by a CRNP must be related to and supportive of the facility, property, or program with which a [the] CRNP is associated or must further the CRNP's mission related to the facility, property or program.

(6) [(2)] All donations to a [the] CRNP must benefit the facility, property, or program with which the CRNP is associated or must further the CRNPs mission related to the facility, property, or program.

(7) [(3)] For purposes of this subsection, a donation for the purpose of defraying the CRNP's operating costs furthers the CRNP's mission related to the facility, property, or program.

(8) [(c)] NPs [In addition to subsections (a) and (b) of this section, CRNPs and the ONP] shall adopt [financial] procedures that address [govern] acceptance and granting of [and access to] funds raised to [for the] benefit projects and/or programs of the department.

(b) [(d)] Nothing in this subchapter shall limit the ability of a NP to make an unrestricted cash donation to the department. Such a donation may be for a specific purpose or program.

(c) [(e)] NPs[, CRNPs and the ONP] may work together towards a common fundraising goal for the benefit of the department, consistent with the requirements of this subchapter.

§51.166.Best Practices (Sponsorship).

(a) NPs may solicit and accept sponsorships for department programs, so long as the NP complies with the provisions of this subsection and other written guidance that be provided by the department.

(1) All sponsorships of department programs and the level of sponsorship recognition provided by the department must have prior written approval of the department as set forth in this paragraph.

(A) (No change.)

(B) A local sponsorship and the associated sponsorship recognition must have prior written approval by the regional director or equivalent whose area of responsibility includes the facility, property or program to be supported by the local sponsorship.

(2) - (6) (No change.)

(b) (No change.)

§51.167.Department Procedures.

(a) The department will maintain and periodically update [a list of GNPs and] a [separate] list of CRNPs. This list will be made available to the public.

(b) The department will not [hold or] obligate NP funds or property except by written agreement signed by the NP.

(c) (No change.)

(d) The department may develop model policies and procedures for adoption by [CRNPs or other] NPs. Where a NP [CRNP or the ONP] is required by these rules to adopt a policy or procedure, adoption of the model policy or procedure shall be deemed to comply with that requirement.

(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 September 18, 2017.

TRD-201703664

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: October 29, 2017

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


CHAPTER 57. FISHERIES

SUBCHAPTER O. COASTAL MANAGEMENT AREAS

31 TAC §§57.1010 - 57.1012, 57.1015

The Texas Parks and Wildlife Department proposes new §§57.1010 - 57.1012 and §57.1015, concerning Coastal Management Areas. The proposed new sections would constitute new Subchapter O in Chapter 57.

The department has acquired or is in the process of acquiring several tracts of land along the Texas coast. The primary intent of the acquisitions is to conserve and protect open space coastal habitat for ecological benefit, but the department has also determined that these areas can provide public recreational enjoyment consistent with sound ecological management. Therefore, the department is creating a new class of wildlife management area to be called a Coastal Management Area (CMA). At least initially, the CMAs established under the proposed new rules will be limited to unsupervised primitive use activities; thus the proposed new rules create the first two CMAs, establish rules of conduct for public use of CMAs, and provide penalties for violations of the rules.

Proposed new §57.1010, concerning Applicability, would stipulate that the rules of the subchapter apply to all CMAs regardless of the presence or absence of boundary markers. Because at least initially these CMAs will not have full-time, on-site staff, it is necessary to make clear that the designation of a tract of land as a CMA imposes the rules of the subchapter on the tract of land even if the physical boundaries of the tract are not indicated by signage or fencing.

The proposed new section would also identify those tracts of lands designated as CMAs. Follets Island CMA is on a barrier island between Christmas Bay and the Gulf of Mexico in Brazoria County. The Matagorda Peninsula CMA is on a barrier island between East Matagorda Bay and the Gulf of Mexico in Matagorda County.

Proposed new §57.1011, concerning Definitions, would set forth the meanings of specialized words and terms used in the subchapter in order to prevent confusion and promote compliance and enforcement.

Proposed new paragraph (1) would define "airboat" as "a boat powered by a mechanical propulsion system that drives air, including, but not limited to a fan, propeller, or jet." The definition is necessary because the proposed rules would prohibit the use of an airboat on a CMA.

Proposed new paragraph (2) would define "arms and firearms" as "any device from which shot, a projectile, arrow, or bolt is fired by the force of an explosion, compressed air, gas, or mechanical device, including, but not limited to, rifle, shotgun, handgun, air rifle, pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun." The definition is necessary because the rules as proposed would prohibit the display or discharge of arms and firearms except by persons engaged in lawful hunting activities.

Proposed new paragraph (3) would define "camping" as "the use of CMA lands for overnight accommodation, which includes sleeping, the storage of unattended personal possessions, or the use of a motor vehicle as a lodging." The definition is necessary inasmuch as the rules as proposed would place limitations on the frequency and duration of camping activities on CMAs.

Proposed new paragraph (4) would define "Coastal Management Area (CMA)" as "a type of wildlife management area classified under the provisions of Parks and Wildlife Code, §13.001, for purposes of managing coastal habitats and resources." The provision is necessary in order to provide for the promulgation of regulations governing CMAs.

Proposed new paragraph (5) would provide a definition of "designated road" as "a constructed roadway indicated as being open to the public by either signs posted to that effect or by current maps and leaflets distributed at the area. Roads closed to the public may additionally be identified by on-site signing, barricades at entrances, or informational literature made available to the public. Designated roads do not include county or state roads or highways." The definition is necessary because the rules as proposed regulate the use of motor vehicles and off-road vehicles on CMAs.

Proposed new paragraph (6) would define "motor vehicle" as "as defined by Transportation Code, Chapter 541." The definition is necessary because the rules as proposed regulate the use of motor vehicles on CMAs.

Proposed new paragraph (7) would define "off-road vehicle" as "an ATV, a utility vehicle, a vehicle that may not lawfully be operated on a public roadway, or any vehicle that is manufactured or adapted for off-road use." The definition is necessary because the rules as proposed regulate the use of off-road vehicles on CMAs.

Proposed new §57.1012, concerning Rules of Conduct, would prescribe specific provisions governing public behavior on CMAs.

Proposed new §57.1012(a) would establish general provisions. Proposed new subsection (a)(1) would provide that the rules of conduct set forth in the proposed new subchapter would apply on all CMAs except by written permission of the department or executive director, which is necessary to provide the legal basis for enforcement of the rules. The department considers that it may be necessary in certain unknown circumstances to provide for exceptions to the rules; thus, the proposed new paragraph also would allow the department or the executive director to address such eventualities by providing exceptions to the rules in writing.

Proposed new §57.1012(a)(2) would provide an exemption from the rules for persons authorized by the department to conduct research on a CMA and department employees in performance of their duties.

Proposed new §57.1012(a)(3) would provide an offense for failing to obey regulations posted at the area or policies established by order of the executive director, failing to comply with instructions on permits or area leaflets, or refusing to follow directives given by departmental personnel in the discharge of official duties, all of which are necessary to ensure that the department is able to effectively manage visitation to CMAs.

Proposed new §57.1012(b) would set forth provisions governing abandoned and unattended property, making it an offense for any person to abandon a vehicle or other personal property, leave a vehicle, boat, barge, or other property unattended in such a manner as to create a hazardous or unsafe condition, or leave property unattended for longer than 24 consecutive hours. The department considers that CMAs are intended to provide both environmental and recreational benefits to the citizens of the state and that the abandonment of personal property at CMAs is inimical to those interests; therefore, the proposed rules would prohibit such abandonment.

Proposed new §57.1012(c) would prohibit the public consumption or display of an alcoholic beverage on CMAs. The department intends to allow the responsible consumption of alcohol on CMAs, provided there is no consumption or display of alcohol in a public place and such consumption does not disrupt the enjoyment of other park visitors.

Proposed new §57.1012(d) would prescribe provisions governing animals and pets on CMAs. The department considers that dogs are human companions and a traditional form of retrieving game birds, but are also capable of being disruptive or dangerous; therefore, the proposed rules make it an offense for any person to possess dogs in camp that are not confined or leashed, or to allow vicious or dangerous dogs to create a disturbance or hazard.

Proposed new §57.1012(e) would set forth provisions relating to arms and firearms. Because CMAs are intended to provide recreational opportunity to many different types of use and the areas will not be managed by on-site staff, the department has determined that it is prudent to stipulate that the display and discharge of arms and firearms be limited to the hunting and fishing activities set forth under the rules and Chapter 65, Subchapter H, which govern public hunting.

Proposed new §57.1012(f) would prescribe measures regarding camping. The department considers that in order to provide for equitable use by the public as well as to prevent the use of department lands as permanent or semi-permanent dwelling places, it is necessary to establish limits on camping on CMAs. Therefore, the proposed rules would make it is an offense for any person to camp for more than 14 consecutive days on a CMA where overnight camping is allowed, or for more than 21 days in any 30-day period, or to establish a camp and leave it unattended for a period of longer than 24 hours.

Proposed new §57.1012(g) would set forth restrictions on fires. The department considers that because CMAs are intended primarily to preserve coastal ecosystem habitats it is axiomatic that the collection or use of living vegetation as fuel is injurious to native vegetative communities and the ecological food webs that depend upon them and therefore should be prohibited. Similarly, unattended fires pose a danger to other CMA users. Therefore, the proposed rules would allow fires to be built, using either firewood brought by users or deadwood or driftwood acquired on-site; however, it would be an offense for any person to fell or cut any living vegetation for firewood or leave a fire unattended.

Proposed new §57.1012(h) would prohibit the use of fireworks on CMAs. As previously mentioned in this preamble, the department intends for CMAs to provide recreational benefits for many different types of users, primarily in the form of enjoyment of open space and natural resources. The department has determined that fireworks are not consistent with any of these uses, or with the overarching management objectives of CMAs.

Proposed new §57.1012(i) would provide for angling opportunity to be allowed under the provisions of Chapter 65, Subchapter N, which is the Statewide Recreational and Commercial Fishing Proclamation. The department believes that CMAs can provide significant high-quality angling opportunity to the public; therefore, the proposed rules would allow the angling opportunity provided for each location by the general fishing regulations of the department.

Proposed new §57.1012(j) would proscribe graffiti and vandalism, making it an offense for any person to write on, scratch, or otherwise deface natural features, signs, buildings, or other structures. Considering that the department's mission is to preserve and conserve the natural and cultural resources under its care, as well as to provide pleasant surroundings for the experience of CMA users, it is obvious that graffiti and vandalism should be prohibited on CMAs.

Proposed new §57.1012(k) would establish provisions governing hunting on CMAs. CMAs will not have on-site permanent staff to conduct hunts and are intended for multiple uses, including hunting, to the extent consistent with public safety. Accordingly, the department has determined that the hunting of migratory game birds (doves, ducks, geese, etc.) under the regulations of the department's public hunting program (which require the purchase of an Annual Public Permit) can be provided. The department considers, however, that the long ranges of centerfire and rimfire firearms present a safety hazard and that allowing the unsupervised use of such firearms presents a danger to other users. Under both federal and state law, the only lawful means of hunting migratory game birds is by shotgun, which are firearms of limited range.

Proposed new §57.1012(l) would prescribe provisions governing the use of motor vehicles and off-road vehicles. Since it is the department's duty and intent to manage CMAs for conservation and responsible public recreational opportunity consistent with that goal, it is necessary to regulate the use of motor vehicles and off-road vehicles. Coastal habitats are remarkably delicate and subject to disruption by motor traffic. The department therefore proposes to make it an offense for any person to operate a motor vehicle anywhere other than designated roads, parking areas, or other areas designated as open for motor vehicle use, or to operate an off-road vehicle anywhere other than in an area designated as open for off-road vehicle use.

Proposed new §57.1012(m) would prohibit the use of airboats on CMAs. Airboats are capable of disturbing sensitive marsh vegetation and wetlands communities; therefore, the department has determined that the recreational use of airboats on CMAs is antithetical to the purpose of CMAs.

Proposed new §57.1012(n) would establish provisions concerning visitor impacts to natural and cultural resources. The proposed rule would make it an offense for any person to willfully mutilate, injure, destroy, pick, cut, remove, or introduce any plant life except by permit issued by the director; to intentionally or negligently take, remove, destroy, deface, tamper with, or disturb any rock, earth, soil, gem, mineral, fossil, or other geological deposit except by permit issued by the director; to take, remove, destroy, deface, tamper with, disturb, or otherwise adversely impact any prehistoric or historic resource, including but not limited to, buildings, structures, cultural features, rock art, or artifacts, except by written order of the director; or to harm, harass, disturb, trap, confine, catch, possess, remove, release, introduce, or feed any wildlife, or portions of wildlife, except as otherwise provided or authorized. The proposed rule is necessary, generally, to prevent injury or harm to natural and cultural resources that it is the department's duty and goal to protect and conserve for the enjoyment of all visitors. The rule also would create an exception for incidental disturbance occurring as part of normal visitation activities.

Proposed new §57.1012(o) would establish standards for treatment of wastewater, sewage, and garbage, making it an offense to deposit waste water, sewage, or effluent from sinks, toilets, or other plumbing fixtures directly on the ground or into the water; or to dispose of garbage except in a receptacle provided for that use or as may otherwise be specifically authorized by department personnel. The proposed provision is necessary to ensure that environmental degradation does not occur as a result of public visitation at CMAs.

Proposed new §57.1015, concerning Penalties, would reference the statutory penalties for violations of regulations adopted under Parks and Wildlife Code, Chapter 81, which is intended for convenience.

Robin Riechers, Coastal Fisheries Division Director, 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. Riechers 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 rule as proposed will be the preservation and conservation of coastal habitat and open space for the enjoyment of present and future generations.

There will be no adverse economic impacts to 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, 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 because the rules govern public conduct on coastal management areas, there will be no adverse economic effects on small businesses, microbusinesses, or rural communities. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

The department has determined that the proposed rule is in compliance with Government Code, §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

In compliance with the requirements of Government Code, §2001.024, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; create new regulations that govern public conduct on CMAs; not expand, limit, or repeal an existing regulation; neither increase nor decrease the number of individuals subject to regulation; and have an insignificant positive impact on the state's economy. It is possible that the rules will result in increased visitation to coastal areas, with the attendant additive positive economic impacts associated generally with tourism; however, this impact is expected to be slight at both macro and micro levels.

Comments on the proposed rule may be submitted to Mark Lingo, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4668 (e-mail: mark.lingo@tpwd.texas.gov) or on the department's website at www. tpwd.texas.gov.

The new rules are proposed under the authority of Parks and Wildlife Code, §81.006, which prohibits the take, attempted take, or possession of any wildlife or fish from a wildlife management area except in the manner and during the times permitted by the department under Chapter 81, Subchapter E, and under Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to establish an open season on wildlife management areas and public hunting lands, authorizes the executive director to regulate numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas and public hunting lands, and authorizes the commission to adopt rules governing recreational activities in wildlife management areas.

The proposed new rules affect Parks and Wildlife Code, Chapter 81.

§58.1010.Applicability.

(a) This subchapter applies to all activities subject to department regulation on any tract of land designated by the department as a coastal management area (CMA), regardless of the presence or absence of boundary markers.

(b) The following lands are CMAs:

(1) Follets Island CMA in Brazoria County; and

(2) Matagorda Peninsula CMA in Matagorda County.

(c) The CMAs designated in this section are open to hunting, fishing, and other recreational use, subject to the provisions of this subchapter and any applicable provisions of the Parks and Wildlife Code.

§57.1011.Definitions.

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

(1) Airboat--A boat powered by a mechanical propulsion system that drives air, including, but not limited to a fan, propeller, or jet.

(2) Arms and firearms--Any device from which shot, a projectile, arrow, or bolt is fired by the force of an explosion, compressed air, gas, or mechanical device, including, but not limited to, rifle, shotgun, handgun, air rifle, pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun.

(3) Camping--The use of CMA lands for overnight accommodation, which includes sleeping, the storage of unattended personal possessions, or the use of a motor vehicle as a lodging.

(4) Coastal Management Area (CMA)--A type of wildlife management area classified under the provisions of Parks and Wildlife Code, §13.001, for purposes of managing coastal habitats and resources.

(5) Designated road--A constructed roadway indicated as being open to the public by either signs posted to that effect or by current maps and leaflets distributed at the area. Roads closed to the public may additionally be identified by on-site signing, barricades at entrances, or informational literature made available to the public. Designated roads do not include county or state roads or highways.

(6) Motor vehicle--As defined by Transportation Code, Chapter 541.

(7) Off-road vehicle--An ATV, a utility vehicle, a vehicle that may not lawfully be operated on a public roadway, or any vehicle that is manufactured or adapted for off-road use.

§57.1012.Rules of Conduct.

(a) General.

(1) This section applies to all CMAs unless an exception for a specific area and time period is designated by the executive director or by written permission of the department.

(2) The provisions of this section do not apply to persons authorized by the department to conduct research on the area and department employees in performance of their duties.

(3) It is an offense for any person to fail to obey regulations posted at the area or policies established by order of the executive director, fail to comply with instructions on permits or area leaflets, or refuse to follow directives given by departmental personnel in the discharge of official duties.

(b) Abandoned and unattended property. It is an offense for any person to:

(1) abandon a vehicle or other personal property;

(2) leave a vehicle, boat, barge, or other property unattended in such a manner as to create a hazardous or unsafe condition; or

(3) leave property unattended for longer than 24 consecutive hours.

(c) Alcoholic beverages. It is an offense for any person to publicly consume or display an alcoholic beverage.

(d) Animals and pets. It is an offense for any person to:

(1) possess dogs in camp that are not confined or leashed; or

(2) allow vicious or dangerous dogs to create a disturbance or hazard.

(e) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm except:

(1) while hunting migratory game birds under the provisions of this subchapter; or

(2) while fishing by means of lawful archery equipment.

(f) Camping. It is an offense for any person to:

(1) camp for more than 14 consecutive days on a CMA where overnight camping is allowed, or for more than 21 days in any 30-day period; or

(2) establish a camp and leave it unattended for a period of longer than 24 hours.

(g) Fires. Fires are permitted and visitors may bring firewood or collect deadwood or driftwood for fires; however, it is unlawful for any person to:

(1) fell or cut any living vegetation for firewood; or

(2) leave a fire unattended.

(h) Fireworks are prohibited.

(i) Fishing. Fishing is allowed under the provisions of Subchapter N of this chapter (relating to Statewide Recreational and Commercial Fishing Proclamation).

(j) Graffiti and Vandalism. It is an offense for any person to write on, scratch, or otherwise deface natural features, signs, buildings, or other structures.

(k) Hunting.

(1) No person may hunt any wildlife resource other than migratory game birds.

(2) The hunting, taking, and possession of migratory game birds shall be as provided by Chapter 65, Subchapter N of this title (relating to Migratory Game Bird Proclamation).

(3) It is an offense for any person to hunt migratory game birds without possessing a valid Annual Public Permit.

(l) Motor Vehicles and Off-Road Vehicles. It is an offense for any person to:

(1) operate a motor vehicle anywhere other than designated roads, parking areas, or other areas designated as open for motor vehicle use; or

(2) operate an off-road vehicle anywhere other than in an area designated as open for off-road vehicle use.

(m) Airboats. The use of airboats is prohibited on CMAs.

(n) Natural and Cultural Resources. This paragraph does not apply to incidental or unintentional disturbance occurring as result of normal visitation activities.

(1) Plant life. It is an offense for any person to willfully mutilate, injure, destroy, pick, cut, remove, or introduce any plant life except by permit issued by the director.

(2) Geological features. It is an offense for any person to intentionally or negligently take, remove, destroy, deface, tamper with, or disturb any rock, earth, soil, gem, mineral, fossil, or other geological deposit except by permit issued by the director.

(3) Cultural resources. It is an offense for any person to take, remove, destroy, deface, tamper with, disturb, or otherwise adversely impact any prehistoric or historic resource, including but not limited to, buildings, structures, cultural features, rock art, or artifacts, except by written order of the director.

(4) Wildlife. It is an offense for any person to:

(A) harm, harass, disturb, trap, confine, catch, possess, or remove any wildlife, or portions of wildlife, except as provided in subsection (k) of this section or authorized in writing by the department;

(B) release or introduce any species of animal life (including to waters within or bordering a CMA), except as authorized by the Parks and Wildlife Code and written order of the Executive Director or designee; or

(C) feed or offer food to any wildlife, or to leave food unsecured in a manner that makes the food available to wildlife, unless specifically authorized by the department.

(o) Wastewater, Sewage, and Garbage. It is an offense for any person to:

(1) deposit waste water, sewage, or effluent from sinks, toilets, or other plumbing fixtures directly on the ground or into the water; or

(2) dispose of garbage except in a receptacle provided for that use or as may otherwise be specifically authorized by department personnel.

§57.1015.Penalties.

The penalties for violation of this subchapter are prescribed by Parks and Wildlife Code, §81.007.

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 September 18, 2017.

TRD-201703665

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: October 29, 2017

For further information, please call: (512) 389-4668