Commission Agenda Item No. 2
Presenter: Ann Bright

Action
Regulations Rule Review
Recommended Adoption of Proposed Changes and Completed Rule Review
January 26, 2017

I.      Executive Summary: Texas Parks and Wildlife Department (TPWD) staff will be seeking Commission adoption of changes resulting from the review of TPWD rules in Title 31, Texas Administrative Code, Chapter 53, Finance; Chapter 59, Parks; Chapter 69, Resource Protection.

II.     Discussion: Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years.  The review must include an assessment of whether the reasons for initially adopting a rule continue to exist. Notice of the proposed review must be published in the Texas Register for public comment. Following the review, rules must be readopted, adopted with changes, or repealed, based on the review.

In August 2016, TPWD staff was authorized begin the review of the following TPWD rules in Chapter 53, Finance; Chapter 59, Parks; Chapter 69, Resource Protection. In November 2016, staff was authorized to publish proposed changes to these chapters resulting from the review.

III.   Recommendation:  Staff is now seeking adoption of proposed changes to Chapters 53, 59, and 69, and recommends that the Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to §§53.2, 53.14, 53.60, 53.91, 59.2, 59.3, 59.4, 69.6, 69.8, 69.26, 26.102, 69.116, 69.121, 69.301, 69.405 as published in the December 23, 2016, issue of the Texas Register (41 Tex. Reg. 10066, 10081, 10083), with changes as necessary to the proposed text, and also adopts the completed rule review of Chapters 53, 59, and 69 of the Texas Parks and Wildlife Department rules (Title 31, Part II of the Texas Administrative Code).”

Attachments – 3

  1. Exhibit A – Chapter 53 Proposed Rule Amendments
  2. Exhibit B – Chapter 59 Proposed Rule Amendments
  3. Exhibit C – Chapter 69 Proposed Rule Amendments

Commission Agenda Item No. 2
Exhibit A

LEGISLATIVE RULES REVIEW
CHAPTER 53. FINANCE
PROPOSAL PREAMBLE

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.

2. Fiscal Note.

        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.

3. Public Benefit/Cost Note.

        Ms. Bright also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) 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.

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

        (C) 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.

        (D) 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.

        (E) 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.

4. Request for Public Comment.

        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/.

5.  Statutory Authority.

        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.

6. Text.

        §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].

                                          (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.]

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        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. (1) – (9) (No change.)

                 (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.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendment to 53.91 concerning Documented Vessels 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.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

            Issued in Austin, Texas, on


Commission Agenda Item No. 2
Exhibit B

LEGISLATIVE RULES REVIEW
CHAPTER 59. PARKS
PROPOSAL PREAMBLE

1. Introduction.

        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.”

2. Fiscal Note.

        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.

3. Public Benefit/Cost Note.

        Mr. Good also has determined that for each of the first five years the rules as proposed are in effect:

        (A) 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.

        (B) 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.

        (C) 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.

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

        (E) 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.

4. Request for Public Comment.

        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).    

5. Statutory Authority.

        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.

6. Text.

        §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.)


Commission Agenda Item No. 2
Exhibit C

RULES REVIEW
CHAPTER 69. RESOURCE PROTECTION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes the repeal of §69.6 and amendments to §§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 §69.8, concerning Endangered and Threatened Plants, would remove Johnston’s frankenia (Frankenia johnstonii) from the list of endangered species of plants in subsection (a). 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, it is anticipated that New World Vultures will also have their own Order, Cathartiformes. 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).

2. Fiscal Note.

        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.

3. Public Benefit/Cost Note.

        Ms. Bright has also determined that for each of the first five years the rules as proposed are in effect:

        (A) 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.

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

        (C) 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.

        (C)  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.

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

        (E) 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.

4. Request for Public Comment.

        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.

5. Statutory Authority.

        The repeal is proposed under Parks and Wildlife Code §88.006, which requires the department to adopt regulations to administer Parks and Wildlife Chapter 88 concerning Endangered Plants, including regulations to address permit application fees.

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

6. Rule Text

        §69.6. Permit and Tag Fees.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendment 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 amendment affects Parks and Wildlife Code, Chapter 88.

        §69.8. Endangered and Threatened Plants.

                 (a) The following plants are endangered:

CACTI

star cactus (Astrophytum asterias)

Nellie cory cactus (Escobaria minima)

Sneed pincushion cactus (Escobaria sneedii var. sneedii)

black lace cactus (Echinocereus reichenbachii var. albertii)

Davis’ green pitaya (Echinocereus davisii)

Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii)

TREES, SHRUBS, AND SUBSHRUBS

[Johnston’s frankenia (Frankenia johnstonii)]

Walker’s manioc (Manihot walkerae)

Texas snowbells (Styrax platanifolius ssp. texanus)

WILDFLOWERS

large-fruited sand verbena (Abronia macrocarpa)

South Texas ambrosia (Ambrosia cheiranthifolia)

Texas ayenia (Ayenia limitaris)

Texas poppy mallow (Callirhoe scabriuscula)

Terlingua Creek cat’s-eye (Cryptantha crassipes)

slender rush-pea (Hoffmannseggia tenella)

Texas prairie dawn (Hymenoxys texana)

white bladderpod (Physaria pallida)

Texas trailing phlox (Phlox nivalis ssp. texensis)

Texas golden gladecress (Leavenworthia texana)

ashy dogweed (Thymophylla tephroleuca)

Zapata bladderpod (Physaria thamnophila)

ORCHIDS

Navasota ladies’-tresses  (Spiranthes parksii)

GRASSES AND GRASS-LIKE PLANTS

Little Aguja pondweed (Potamogeton clystocarpus)

Texas wild-rice (Zizania texana)

                 (b) – (c) (No change)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        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:

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

                         (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.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        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.

                 (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 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.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        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.

                 (1) — (2) (No change)

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

                 (4) – (7) (No change)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        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.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

            Issued in Austin, Texas, on