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Commission Agenda Item No. 5
Presenter: Cody Jones

Action
Rules Governing Buoy Standards
March 26, 2015

I.       Executive Summary:  This item seeks adoption of proposed amendments to regulations governing buoy marking systems. The proposed amendments would update the Texas Parks and Wildlife Department’s (TPWD) rules to reflect accurate references to federal law.

II.     Discussion:  Under Parks and Wildlife Code, §31.002, the legislature establishes the duty of the state to promote recreational water safety and the uniformity of laws relating to water safety. Under Parks and Wildlife Code, §31.091, the legislature expressly reserves to the state the basic authority to regulate boating. In order to establish uniformity of regulations regarding navigation markers such as buoys, TPWD utilizes the standards of the United States Coast Guard.  The current rule references the Uniform State Waterway Buoy Marking System contained in 33 Code of Federal Regulations (CFR) §62.33; however, the U.S. Coast Guard in 1998 eliminated the Uniform State Waterway Buoy Marking System and replaced it with the U.S. Aids to Navigation System. The reference in the current rule to the CFR is also outdated, since the entirety of 33 CFR Part 62 is applicable to navigation of the public water of the state. The proposed amendments therefore replace the current references with updated references.

At the Work Session meeting on January 21, 2015, staff was authorized to publish the proposed rules changes in the Texas Register for public comment. The proposed rules appeared in the February 20, 2015 issue of the Texas Register (40 TexReg 786). A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.    Recommendation:  TPWD staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to §55.302, §55.303 and §55.304 concerning Boat Speed Limit and Buoy Standards, with changes as necessary to the proposed text as published in the February 20, 2015, issue of the Texas Register (40 TexReg 786).”

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 5
Exhibit A

BOATING NAVIGATION RULES
PROPOSAL PREAMBLE

1. Introduction.
         The Texas Parks and Wildlife Department (the department) proposes amendments to §§55.302-55.304, concerning Boat Speed Limit and Buoy Standards. The proposed amendments would correct an inaccurate name and citation of applicable federal law and conform definitions. Texas water safety requirements for public water are primarily established by the Texas Legislature in Chapter 31 of the Parks and Wildlife Code (also referred to as the “Water Safety Act”).  Under Parks and Wildlife Code, §31.091, the Texas Legislature expressly reserved to the state the basic authority to regulate boating. Similarly, under Parks and Wildlife Code, §31.002, the Texas Legislature has established the duty of the state to promote recreational water safety and the uniformity of laws relating to water safety. Parks and Wildlife Code, §§31.142, the Texas Legislature delegated to the department authority to “provide for a standardized buoy-marking program for the inland water of the state.”

         In order to establish uniformity of regulations regarding navigation markers such as buoys, the department utilizes the standards of the United States Coast Guard.  The current rule references the Uniform State Waterway Buoy Marking System contained in 33 CFR §62.33; however, the U.S. Coast Guard in 1998 eliminated the Uniform State Waterway Buoy Marking System and replaced it with the U.S. Aids to Navigation System. The reference in the current rule to the Code of Federal Regulations is also outdated, since the entirety of 33 CFR Part 62 is applicable to navigation of the public water of the state. The proposed amendments therefore replace the current references with updated references and remove a definition made unnecessary as a result of the updates.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

         Mr. Jones also has determined that for each of the first five years the rules as proposed rule are in effect:
         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be accurate regulations that enhance public safety.

         (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 Cody Jones, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: cody.jones@tpwd.texas.gov).

5. Statutory Authority.

         The amendments are proposed under the authority of Parks and Wildlife Code, §31.142, which authorizes the department to provide for a standardized buoy-marking program for the inland water of the state. The amendments are proposed in conformity with §31.002, which establishes the duty of the state to promote recreational water safety and the uniformity of laws relating to water safety; and §31.091, which reserves the basic authority to regulate boating to the state.

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

6. Text.

         §55.302. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) – (5) (No change.)

                 [(6) Uniform state waterway buoy marking system— Information and Regulatory Marking System contained in Federal Regulation 33 Code of Federal Regulations §62.33].

         §55.303. General Rules. The following rules shall govern the speed limits of moving vessels on all public waters of this state.

                 (1) Governing boards may establish regulated areas under procedures and rules set out in Parks and Wildlife Code, §31.092, when these rules are determined to be necessary for public safety.

                         (A) – (C) (No change.)

                         (D) The governing board shall post and maintain regulated areas with buoys or pilings consistent with the system of markers authorized by this subchapter[uniform state waterway buoy marking system authorized by these rules].

                 (2) (No change.)

         §55.304. System of Markers.

                 (a) The U.S. Aids to Navigation[Uniform State Waterway Buoy Marking] System contained in 33 Code of Federal Regulations, Part 62[§62.33] is hereby adopted for all public waters in this state.

                 (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