TPWD: November 3, 2016 Commission Meeting Agenda

November 2-3, 2016, Commission Meeting Agenda

Work Session

Commission Agenda Items

Commission Agenda Item No. 3
Presenter: Ann Bright

Action
Regulations Rule Review
Request Adoption of Proposed Changes and Completed Rule Review
November 3, 2016

I. Executive Summary: Texas Parks and Wildlife Department (TPWD) staff will be seeking Texas Parks and Wildlife (TPW) Commission adoption of changes resulting from the review of TPWD rules in Title 31, Texas Administrative Code, Chapter 51 – Executive; Chapter 52 – Stocking Policy; Chapter 55 – Law Enforcement; Chapter 60 – Maintenance Review; Chapter 61 – Design and Construction, and the completed rule review for these chapters.

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 Following the review, rules must be readopted, adopted with changes, or repealed, based on the review.

The TPWD rule review process normally occurs over three Commission meetings. In the first meeting, staff seeks permission to begin the rule review process and to publish notice of the rule review in the Texas Register. In the second meeting, staff seeks permission to publish any proposed rule changes or repeals resulting from the rule review in the Texas Register for public comment. In the third meeting, staff seeks adoption of proposed rule changes, and adoption of the completed rule review (i.e., readoption of the remaining rules).

In May 2016, TPWD staff was authorized to begin the review of the following chapters of Title 31, Texas Administrative Code:

Chapter 51 – Executive
Chapter 52 – Stocking Policy
Chapter 55 – Law Enforcement
Chapter 60 – Maintenance Review
Chapter 61 – Design and Construction

In August, staff was authorized to publish proposed changes to Chapters 51 and 52 resulting from the review. No changes were recommended to Chapters 55, 60 or 61.

III. Recommendation: Staff is now seeking adoption of proposed changes to Chapter 51 and 52 and the completed review of rules in Chapter 51, 52, 55, 60 and 61. Staff recommends that the Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to §§51.204, 51.208, 51.213, 51.350, 51.304, 51.750, 52.104 and 52.401 as published in the September 30, 2016, issue of the Texas Register (41 Tex. Reg. 7677), with changes as necessary to the proposed text, and also adopts the completed rule review of Chapters 51, 52, 55, 60 and 61 of the Texas Parks and Wildlife Department rules (Title 31, Part II of the Texas Administrative Code).”

Attachments – 2

Exhibit A – Chapter 51 Proposed Rule Amendments
Exhibit B – Chapter 52 Proposed Rule Amendments

Commission Agenda Item No. 3
Exhibit A

LEGISLATIVE RULES REVIEW

CHAPTER 51. EXECUTIVE

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§51.204, 51.208, 51.213, 51.350, 51.304, and 51.750. 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 §51.204, concerning Notice of Claim of Breach of Contract, would replace the reference to a “unit’s chief administrative officer” in subsection (b) with the term “division director,” which more accurately describes the department’s organizational structure. Similarly, the proposed amendment would replace the reference to “unit” in subsection (c) with “department” to more accurately describe the addressee of the required notice.

The proposed amendment to §51.208, concerning Timetable, would replace the references to “unit” in subsections (a) and (c) with “department” to more accurately describe the addressee the process and capitalize the initial word of subsection (c) to maintain grammatical parallelism.

The proposed amendment to §51.213, concerning Request for Contested Case Hearing, would replace the references to “unit” in subsections (a) with “department” to more accurately describe the addressee the process, and would replace the term “chief administrative officer” with “executive director” to more accurately refer to the department’s organizational structure.

The proposed amendment to §51.304, concerning Duties of the Department, would alter subsection (a) by adding language to paragraph (2) to clarify that the department may disclose certain information to governmental entities, including law enforcement entities, to carry out a government purpose and adding new paragraph (5) to clarify that records made or kept by the department under Parks and Wildlife Code, §31.039 and §31.0391 (concerning vessel ownership) are considered public records. The proposed amendment also would eliminate subsection (b), which provides for the verification of certain customer information upon request. The department has determined that the proposed amendments are necessary to protect information about customers as allowed by Parks and Wildlife Code, §11.030.

The proposed amendment to §51.350, concerning Vendor Dispute Resolution, would replace the reference to “Director of Purchasing, Contracting, and Distribution Services” with “Purchasing and Contracting Director” to more accurately reflect the department’s organizational structure.

The proposed amendment to §51.750 regarding Promotional Drawings would modify subsection (a)(1) to clarify that the $5,000 limit on the value of prizes does not include items donated to the department.

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 51, including the protection of customer information.

(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 amendments are proposed under the authority of Government Code, §2260.052(c), which requires each unit of state government with rulemaking authority to develop rules to govern the negotiation and mediation of contract claims against the state, and Parks and Wildlife Code, §11.0171, which requires the commission to adopt by rule policies and procedures for soliciting and awarding contracts.

The proposed amendments affect Government Code, Chapter 2260 and Parks and Wildlife Code, Chapter 11.

6. Text.

§51.204. Notice of Claim of Breach of Contract.

(a) (No change.)

(b) The notice of claim shall:

(1) (No change.)

(2) be delivered by hand, certified mail return receipt requested, or other verifiable delivery service, to the officer of the department designated in the contract to receive a notice of claim of breach of contract under Government Code, Chapter 2260; if no person is designated in the contract, the notice shall be delivered to the division director[~~unit’s chief administrative officer~~], and shall state in detail:

(A) — (C) (No change.)

(c) In addition to the mandatory contents of the notice of claim as required by subsection (b) of this section, the contractor may submit supporting documentation or other tangible evidence to facilitate the department’s[~~unit’s~~] evaluation of the contractor’s claim.

(d) (No change.)

§51.208. Timetable.

(a) Following receipt of a contractor’s notice of claim, the executive director of the department or other representative designated in the contract shall review the contractor’s claim(s) and the department’s[~~unit’s~~] counterclaim(s), if any, and initiate negotiations with the contractor to attempt to resolve the claim(s) and counterclaim(s).

(b) (No change.)

(c) The[~~the~~] department may delay negotiations until after the 180th day after the date of the event giving rise to the claim of breach of contract by:

(1) (No change.)

(2) delivering written notice to the contractor when the department[~~unit~~] is ready to begin negotiations.

(d) — (f) (No change.)

(g) The contractor may request a contested case hearing before the State Office of Administrative Hearings ("SOAH") pursuant to §51.213 of this title (relating to Request for Contested Case Hearing) after the 270th day after the department[~~unit~~] receives the contractor’s notice of claim, or the expiration of any extension agreed to under subsection (f) of this section.

(h) — (i) (No change.)

§51.213. Request for Contested Case Hearing.

(a) If a claim for breach of contract is not resolved in its entirety through negotiation, mediation or other assisted negotiation process in accordance with this chapter on or before the 270th day after the department[~~unit~~] receives the notice of claim, or after the expiration of any extension agreed to by the parties pursuant to §51.208(f) of this title (relating to Timetable), the contractor may file a request with the department for a contested case hearing before SOAH.

(b) A request for a contested case hearing shall state the legal and factual basis for the claim, and shall be delivered to the executive director[~~chief administrative officer~~] of the department or other officer designated in the contract to receive notice within a reasonable time after the 270th day or the expiration of any written extension agreed to pursuant to §51.208(f) of this subchapter.

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, §11.030, which requires the commission to adopt policies by rule relating to the release of the customer information; the use of the customer information by the department; and the sale of a mailing list consisting of the names and addresses of persons who purchase customer products, licenses, or services.

The proposed amendment affects Parks and Wildlife Code, Chapter 11.

§51.304. Exceptions.

(a) Unless otherwise prohibited by law, the department may disclose the recreational customer, personal customer information or confidential customer information as follows:

(1) (No change.)

(2) Recreational customer information, personal information or confidential customer information may be disclosed to another governmental body, including, but not limited to a law enforcement entity, as needed to carry out a governmental purpose[~~that agrees to maintain the confidentiality of the information~~].

(3) – (4) (No change.)

(5) Records made or kept by the department that are considered public records under Parks and Wildlife Code, §31.039 and §31.0391.

[(b) If a requestor provides a recreational customer’s name or other identifying information, the department may verify information about a recreational customer as specified in this subsection; however, the department may require that the requestor complete and submit a separate written form for each recreational customer about which the department is requested to verify information.]

[~~(1) The department may verify whether a recreational customer holds a specified license or permit.~~]

[~~(2) The department may verify whether a recreational customer was a visitor to a state park or other department facility.~~]

[~~(3) The department may verify whether a recreational customer purchased a state parks annual pass or made a reservation at a park or other department facility.~~]

[~~(4) The department may verify whether a recreational customer purchased an item or product from the department.~~]

(b)[~~(c)~~] Information that is rented under this subchapter may be used by the requestor no more than one time. The department will take appropriate steps to verify that rented information is used no more than one time.

(c)[~~(d)~~] The department may follow industry standards, including, but not limited to standards regarding the exclusion or inclusion of magazine customer information on a list of magazine customers that is rented or sold.

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 Government Code, §2155.076, which requires the department as a state agency to adopt rules for resolving vendor protests relating to purchasing issues.

The proposed amendment affects Government Code Chapter 2155.

§51.350. Vendor Dispute Resolution.

(a) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Purchasing and Contracting Director[~~Director of Purchasing, Contracting, and Distribution Services~~]. Such protests must be in writing and received in the director’s office within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested. Copies of the protest must be mailed or delivered by the protesting party to the department and other interested parties. For the purpose of this section "other interested persons" means at least all vendors who have submitted bids or proposals for the contract involved.

(b) – (h) (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, §11.0271, which authorizes the department to conduct public drawings to select applicants for public hunting privileges; §11.0272, which authorizes the department to conduct public drawings to select applicants for special fishing or other special programs, packages, or events; Parks and Wildlife Code, §13.015, which authorizes the commission to establish park user fees; Parks and Wildlife Code, §42.012, which authorizes the commission to waive hunting license fees for a resident who is participating in an event sponsored or co-sponsored by the department with the approval of the executive director; Parks and Wildlife Code, §46.002, which exempts a person who is participating in an event sponsored or co-sponsored by the department with the approval of the executive director from fishing license requirements; Parks and Wildlife Code, §50.001, which requires the commission to establish combination licenses or license packages for hunting, fishing, or other activities and authorizes the commission to establish fees for combination license or license packages, provided the fee is less than the fees for the individual components of the package; and Parks and Wildlife Code, §81.403, which authorizes the department to issue a permit authorizing access to public hunting land or for specific hunting, fishing, recreational, other used of public hunting land or a wildlife management area and requires the commission to prescribe the fees and conditions of the issuance and use of such permits by rule.

The proposed amendment affects Parks and Wildlife Code, Chapters 11, 13, 42, 46, 50, and 81.

§51.750. Promotional Drawings.

(a) The executive director of the department may approve specific promotional event packages to be made available to individual members of the public by means of random drawing as provided in this section. Prior to approval of any promotional event package under this section, the executive director shall ensure that:

(1) the aggregate value of the packages offered does not exceed $5,000 for any fiscal year, excluding items donated to the department;

(2) – (3) (No change.)

(b) – (g) (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

Commission Agenda Item No. 3
Exhibit B

LEGISLATIVE RULES REVIEW

CHAPTER 52. STOCKING POLICY

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §52.104 and §52.401. 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 §52.104, concerning Policy of the Department, would alter subsection (b) by eliminating the initial capitalization of the term “annual operational plan.” The capitalization suggests that there is a specific document titled “Annual Operational Plan.” Eliminating the capitalization more accurately describes the plan.

The proposed amendment to §52.401, concerning Fish Stocking in Private Waters, would alter subsection (b)(4) to clarify that an agreement regarding the stocking of fish in private waters must be signed by the department’s executive director. Since fish may be stocked in private waters only as part of a department project associated with investigation, propagation, distribution, scientific, educational, or other valid management purposes, it is appropriate for the executive director to be the signatory on such agreements to ensure that such purposes are being served. Similarly, the amendment would further clarify that the stocking of any private waters not be associated with pay-to-fish operations.

2. Fiscal Note.

Ken Kurzawski, Program Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

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

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

(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 proposal may be submitted to Ken Kurzawski (Inland Fisheries) at (512) 389-4591, e-mail: ken.kurzawski@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 Parks and Wildlife Code, §§1.012, 12.001, 12.013 — 12.015, and 66.015, which provide the Parks and Wildlife Commission with the authority to promulgate regulations governing the stocking of wildlife in the state.

The proposed amendment affects Parks and Wildlife Code, Chapters 1, 12, and 66.

6. Text.

§52.104. Policy of the Department

(a) (No change.)

(b) Departmental stocking of fish and wildlife on public lands and in public waters shall be consistent with the annual operational plan[~~Annual Operational Plan~~].

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 proposed amendment affects Parks and Wildlife Code, Chapters 1, 12, and 66.

§52.401. Fish Stocking in Private Waters.

(a) (No change.)

(b) Conditions for stocking fish.

(1) – (3) (No change.)

(4) A written agreement must be executed and signed by the executive director.

(5) During the time period specified in the written agreement required by paragraph (4) of this subsection, private waters stocked under this subchapter shall not be subject to fishing in exchange for money or anything of value.

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