Commission Agenda Item No. 4
Presenter:
Kevin Good
Action
State Park Rules - Recommended Adoption of Proposed Rules
January 21, 2016
I. Executive Summary: This item seeks adoption of proposed changes to 31 Texas Administrative Code (TAC), Chapter 59. The proposed amendments would update and simplify rules regarding park fees, business operations, and state park administration, and would update rules regarding visitor conduct.
II. Discussion: The current state park rules have accrued over time and in some places are confusing, disjointed, and contradictory. With the exception of the proposed amendments to §§59.131, 59.133, and 59.134, concerning state parks rules of conduct, the proposed repeals, amendments, and new sections are nonsubstantive and intended to modernize the department’s state park rules by removing obsolete provisions, eliminating redundancy, consolidating provisions by subject material, and simplifying regulatory provisions where possible. The goals of the proposed changes are to simplify language and provide clarity, remove obsolete language, provide greater business flexibility and address new business needs. Staff wishes to stress that the rules as proposed will not result in additional fees or increased fees at any park.
Amendments to §§59.131, 59.133, and 59.134, concerning state parks rules of conduct, will provide clear authority for closure of a state park as necessary to protect public health and safety during emergency conditions, resource management activities, construction projects or other management purposes. In addition, the proposed amendments would expand current prohibitions on the introduction of non-native species into park waterways to cover park land areas. Additional changes will also allow llamas on certain park trails and provide greater enforcement authority regarding the terms of permits issued to park users. The proposed amendments will also clarify rules regarding archery in parks and align the rules regarding the display of firearms in parks with legislation passed during the 84th session of the Texas Legislature.
III. RECOMMENDATION: Staff recommends that the Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission approves the repeal of §§59.1 – 59.5, 59.41-59.47, 59.191-59.193, and 59.330, amendments to §§59.101-59.103, 59.105, 59.107-59.109, and 59.131, 59.133, 59.134, and new §59.1-59.5 and 59.42 and 59.44, Texas Administrative Code as published in the December 18, 2015 issue of the Texas Register (40 TexReg 9075).”
Commission Agenda Item No. 4
Exhibit A
STATE PARK RULES
PROPOSAL PREAMBLE
- Introduction.
The Texas Parks and Wildlife Department (department) proposes the repeal of §§59.1 – 59.5, 59.41-59.47, 59.191-59.193, and 59.330, amendments to §§59.101-59.103, 59.105, 59.107-59.109, and 59.131, 59.133, 59.134, and new §59.1-59.5 and 59.42 and 59.44, concerning State Parks. The current state park rules have accreted over time and in some places are confusing, disjointed, and contradictory. With the exception of the proposed amendments to §§59.131, 59.133, and 59.134, concerning state parks rules of conduct, the proposed repeals, amendments, and new sections are nonsubstantive and intended to modernize the department’s state park rules by removing obsolete provisions, eliminating redundancy, consolidating provisions by subject material, and simplifying regulatory provisions where possible. 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 repeal of §59.1-59.5 is necessary in order to accommodate new rules that simply and succinctly establish the process by which the department establishes and changes the various fees it is authorized to impose.
Proposed new §59.1, concerning Establishment of Fees, would retain the language of current §59.1(a) and add a definition of “state park” or “park” in the interests of accuracy. Current §59.1(b) would be eliminated because it is an abstraction that is of little use from a regulatory perspective. Proposed new paragraph (1) would clearly delineate the process by which the department establishes the various state park fees. The Parks and Wildlife Commission (Commission) currently establishes entry, facility, and use fees within a range of values that the executive director may adjust as necessary but not exceed. Proposed new paragraph (2) would formalize that process by requiring all changes (including waivers and discounts) to entry, facility, and use fees to be documented by executive order. Proposed new paragraph (3) would provide for the delegation of discount and waiver authority to other department personnel in accordance with a written department policy, and proposed new paragraph (4) would require the establishment and collection of fees and fee waivers to be consistent with sound management of financial resources and strong fiscal controls. The proposed new rule is intended to provide flexibility to the department to adjust fees by increments as necessary within the fee ranges established by the commission while simultaneously providing accountability by way of documentation.
Current §59.2, concerning Parks Entrance and Use Fees, has become confusing and contains unnecessary provisions. Therefore, proposed new §59.2, concerning Park Entrance Fees, would provide a single, concise set of provisions to establish the department’s authority to impose entry fees, entry fee amount ranges, the privileges conveyed by payment of an entry fee, the duration of those privileges, and the department’s authority to create customized fees that include entry fees. The extraneous provisions such as application procedures and privileges for various passes are being located in proposed new §59.3, concerning Park Entry Passes. The department notes that neither the current entry fee privileges and period of validity nor the current entry fee amounts are not being changed.
Proposed new §59.3, concerning Park Entry Passes, would consolidate all provisions concerning the various passes issued by the department (application, fees, privileges) in a single section. The department notes that the proposed new provision does not introduce any substantive changes to the current rules governing the issuance of various passes and does not increase any fee.
Proposed new §59.4, concerning Activity and Facility Use Fees, would reorganize and simplify the current fee schedule without altering the current fee ranges established by the commission. The department has determined that the current fee rules for activity and facility use at §59.3, concerning Activity and Facility Use Fees, are redundant, excessively detailed, and minutely nuanced for no reason or benefit. For instance, the section establishes separate fee ranges for pavilions, amphitheaters; auditoriums, and gymnasiums, which are essentially the same thing. Similarly, the section establishes fee ranges for hotel/motel rooms based on bed size (single, standard, king single, suite, executive suite), but also for bed and breakfast facilities, rooms with kitchenettes, cabins, and shelters. The current rule makes various subtle distinctions regarding campsites (primitive, regular, regular with electricity, regular with electricity and sewer connection) and group facilities (group lodge, group camp, etc.) as well as numerous other permutations and combinations of facilities and usage. The department has determined that a simple fee schedule that establishes fee ranges for basic types of facilities and use is all that is necessary from a regulatory perspective, with the specific current fees for each type of facility/use to be established by executive order. Thus, rather than multiple fee ranges for essentially the same type of facility/use parameters, the proposed new rule would establish facility/use ranges by generic type under the current fee ranges for those facilities/uses. The proposed new rule also consolidates existing fees relating to commercial use of state parks that affect usage by the public, require additional staff, or impact facilities or resources into a single “park impact fee.” The department notes that the proposed new section would not alter the current fee ranges established by the commission.
Proposed new §59.5, concerning Reservation of State Park Facilities would provide for a parks reservation system. The department currently operates a reservation system and the proposed new rule would acknowledge that fact and provide for the executive director’s authority to prescribe the procedures and conditions for operating that system.
The proposed repeal of §59.41-59.47 (current Subchapter C) is necessary to eliminate unnecessary regulations. The current regulations are advisory and informational in nature and therefore unnecessary in a regulatory format. The department has determined that with the exception of land acquisition and development guidelines (required by statute, Parks and Wildlife Code, §13.001), the subject material of Subchapter C is more properly the province of department policy.
Proposed new §59.42, concerning Land Acquisition Guidelines (including donations), would set forth the various parameters to be considered by the department with respect to the acquisition of lands for addition to the parks system. Of primary importance is consistency with the department’s Land and Water Resources Conservation and Recreation Plan (Plan) required by Parks and Wildlife Code, §11.104. The Plan is a master document that prioritizes and guides department decisions for the long term. Therefore, proposed new subsection (a)(1) recognizes the role of the Plan in department acquisition decisions. Proposed new subsection (a)(2) would establish contiguity with existing lands as a priority. The department has determined that the ability to increase or enhance existing parkland is a recognized value-added factor in department acquisition decisions. Proposed new subsection (a)(3) would recognize the importance of various recreational values to be considered when the department contemplates the acquisition of land, such as water features, interesting or unique topographic features, and so on. One of the paramount concerns confronting the department when acquiring land is the aesthetic appeal to the park-going public. A further consideration, set forth in proposed new subsection (a)(4), is the natural resource value of prospective acquisitions. In addition to enjoyment by the public, another function of parkland is the preservation of habitats and ecosystems, which is intrinsically valuable. Proposed new subsection (a)(5) would implicate the cultural value of prospective land acquisitions, recognizing that the parks experience also touches on the rich cultural and historical resources of Texas, which are worthy of preservation and interpretation for the benefit and enrichment of the public. Proposed new subsection (a)(6) would recognize the priority of a prospective acquisition that would fill a gap in the department’s inventory of natural and cultural resources. Given the size of Texas, its geographic and cultural diversity, and the finite resources available for land acquisition, it is imperative that the department seek to acquire land that addresses unique natural and cultural facets of the state that may not be currently represented in the inventory of department lands. Proposed new subsection (a)(7) would acknowledge the ancillary values of viewsheds, wildlife corridors, watersheds, and buffers for existing parklands. Proposed new subsection (a)(8) would set forth priorities based on the size of a prospective acquisition. Generally, it is desirable for smaller acquisitions (less than 500 acres) to be contiguous with existing parkland, unless there is a compelling cultural or natural feature that makes it imperative to acquire a parcel; otherwise, larger parcels that are not contiguous may be acquired so long as the acquisition is consistent with the Plan. Finally. Proposed new subsection (a)(9) would acknowledge the value of miscellaneous criteria in the department’s decision-making with respect to land acquisition for parks.
Proposed new §59.42(b) would require all additions to the state park system to be formally accepted by vote of the Commission, which is necessary to ensure that all parkland acquisition is transparent and subject to public comment.
Proposed new §59.44, concerning Development Guidelines, would stipulate that facilities development within the state park system be limited to structures and infrastructure that advance the purposes of the department or serve visitor needs and are consistent with department planning documents. The department believes it is prudent to acknowledge that structures and infrastructure within state parks serve a purpose and not be gratuitous or unnecessary.
The proposed amendments to §§59.101-59.103, 59.105, and 59.107-59.109 make nonsubstantive changes to the rules in Subchapter E, concerning Operation and Leasing of Park Concessions. The proposed amendments modernize the rules and eliminate unnecessary provisions.
The proposed amendment to §59,101, concerning Definitions, would add the word “leased” to the definition of “concessioner” in paragraph (1), add “facility use” to the exceptions in paragraph (2), replace the word “state” with the word “department” in paragraph (3), add new paragraph (5) to define “state park or park,” and eliminate the definitions for “prospectus,” “state-operated concessions,” and “partnership concessions.” The proposed amendment to paragraph (1) is necessary to clarify that concession rights on state parks are leased (i.e., subject to the time limits established in a contract) and not permanent. The proposed amendment to paragraph (2) is necessary to clarify the definition of “concessions.” The proposed amendment to paragraph (3) is necessary to clarify that the payment is actually made to the department. The definition of “state park or park” is necessary to establish the context of the applicability of the rules. The definitions in paragraphs (5)-(7) are superfluous. The definition of “prospectus” is unnecessary because the term is archaic and is being eliminated throughout the rules. The definitions in paragraphs (6) and (7) are being eliminated because the department is not required to treat itself as a concessioner, which leaves all other concessions by default as undertakings of entities other than the department, and covered by the definition in paragraph (1).
The proposed amendment to §59,102, concerning General Requirements for Leased Park Concessions, would alter subsection (a) by adding a declarative statement that park visitor services and accommodations may be operated by a concessioner under contractual arrangements with the department. The department has determined that a direct statement to the effect that the department may contract for the provision of services and accommodations via contract with a concessioner is the most effective way to express the relationship between the department and concessioners. The proposed amendment to subsection (a) also removes the provision stating that when adequate services and accommodations exist outside a park within a reasonable distance, every attempt will be made to avoid the duplication of same products and services. The provision is unnecessary because such determinations are part of the criteria used by the department to determine the feasibility of a providing the opportunity of any given concession. The proposed amendment also would eliminate current subsection (c), which consists of a list of types of concessions that the department may authorize. The provision is unnecessary because the provision is unintentionally limiting. The department has the authority to contract to provide any concession the department deems necessary to enhance or improve the visitation experience, provided it is consistent with the department’s mission and the Plan. See, Parks and Wildlife Code, §13.015.
The proposed amendment to §59.103, concerning Selection of a Concessioner, would reorganize and simplify the section for clarity. The proposed amendment to subsection (a) would incorporate the text from current subsection (c), which delegates the granting, termination, amendment, transfer, assignment, and enforcement of all leased concession contract requirements and provisions of such contracts to the executive director. The proposed amendment to subsection (a) also would eliminate a statement to the effect that when necessary, desirable, and financially feasible, the department may announce availability of concession opportunity by means of a prospectus. The department has determined that a declarative statement of the authority delegated to the executive director by the Commission with respect to contracts with concessioners is the most effective method of establishing the process for determining the need for and the granting of concession contracts. Similarly, the proposed amendment to §59.103 would add new subsection (b) to provide that the recruitment and selection concessioners for a leased concession within a state park be undertaken in a manner appropriate for the scale of the investment and term of the business opportunity, ensuring that the selection process is fair and equitable, and in compliance with applicable contracting laws. The department believes that a statement of intent establishing the general criteria used by the department to determine appropriate concessioners and concession opportunity is important, as is a statement of intent to follow all applicable contracting laws.
The proposed amendment to §59,103 would also amend current subsection (b) (which is being re-designated as subsection (c)) to modernize archaic language and replace a wordy and abstruse provision regarding the expectations of the department with regard to the operations of a concession with a simpler provision stating that it is the expectation of the department that a concessioner operate a concession as set forth in the contract. The proposed amendment also would eliminate current subsections (c) and (d), which are no longer necessary. The substantive provisions of current subsection (c) have been incorporated in subsection (a). Current subsection (d) is unnecessary because the authority to terminate on the basis of breach of contract exists as a condition of the contract and does not need to be established by rule.
The proposed amendment to §59.105, concerning Leased Concession Contract Terms, makes nonsubstantive changes and eliminates archaic language. The proposed amendment to subsection (a) removes stilted language. The proposed amendment to subsection (b) would stipulate that franchise fee rates be determined by the executive director or his designee in an equitable and fair manner, giving consideration to the various types of operations, gross receipts, net profit, and capital invested and provide that single or multiple percentages applied to all or various kinds of gross receipts may be considered in new or amended contracts. Essentially, the proposed amendment would establish the criteria used by the department to determine the particulars of franchise fee rates. The proposed amendment also would eliminate a provision in current subsection (b) that limits revocable short-term contracts to a term of two years or less. The department sees no reason for such a limitation.
The proposed amendment to §59.105(c) would provide for penalties and interest for delinquent franchise fees to be stated in a contract, not to exceed the amounts allowed by statute, which is in keeping with current business practices.
The proposed amendment to §59.105 would add new subsection (d) to provide that penalties and interest may be waived by the executive director or designee for good cause. This provision recognizes that there could be situations in which it would be appropriate for the department to waive penalties and interest imposed under a concession contract, due to such things as unforeseen factors beyond the control of a concessioner, or when in the best interest of the department. The department wishes to provide for such situations.
The proposed amendment to §59.105 also would add new subsection (e) to provide that the rates and charges prescribed by the concessioner shall be subject to the approval of the executive director or designee, that the reasonableness of the concessioner’s rates and charges to the public shall be judged primarily by comparing with current charges for facilities and services of comparable character under similar conditions, and that consideration shall be given to factors deemed relevant to the type of concession, location, and business conditions. The proposed new subsection is necessary to ensure that park visitors are able to use reasonably priced concession opportunities and to protect the state from fraud and loss.
The proposed amendment to §59.107, concerning Accounting, would make a nonsubstantive grammatical change in subsection (a).
The proposed amendment to §59.108, concerning Bond and Insurance, would alter subsection (a) by widening the scope of the requirement for a bond to be furnished by a concessioner, and would allow the department to impose other conditions as necessary to protect the interests of the department and the public, and ensure compliance with applicable law regarding payment and performance bonds. The current rule limits bond requirements to construction projects. The department sees no reason why bond requirements should be thus limited and reasons that the public’s interest should be protected in all cases. Therefore, the department should be able to require any action, including the furnishing of a bond, when it determines there is a necessity to do so. The proposed amendment also would eliminate archaic language in subsection (b) related to insurance coverage and replace it with a simple directive to carry such liability insurance as deemed appropriate by the department.
The proposed amendment to §59.109, concerning Furnishing Utilities, would allow the cost of utilities used by a concessioner to be addressed in the terms of the contract in instances where it is not feasible to meter such usage. Currently, the rule requires utility payments under such conditions to be paid upon receipt of notification. The department has determined that it is in the best interest of the public, the department, and the concessioner to have such issues be addressed contractually so that all parties are in agreement prior to the initiation of concession activities.
The proposed amendment to §59.131, concerning Definitions, would replace a missing conjunction in paragraph (20).
The proposed amendment to §59.133, concerning Closing Hours and Overnight Use, would add new subsection (b) to provide that the executive director or designee may close a state park as necessary to protect public health and safety during emergency conditions, resource management activities, construction projects, or other management purposes. This provision recognizes that it is appropriate to close a park as necessary and to set forth that capability by rule.
The proposed amendment to §59.134, concerning Rules of Conduct in Parks, would allow llamas in state parks, prohibit the introduction of any species of animal life into a state park except as authorized, allow persons to display and use archery equipment when participating in authorized angling activity, and clarify that activities allowed by permit must be conducted under the same conditions as those conducted by payment of fee.
Current §59.134(c) allows for the entry and use of equines by park visitors in designated areas. The proposed amendment would add llamas. The department has been approached by llama enthusiasts who would like to be able to use llamas as pack and assistance animals. After consulting with the Texas Animal Health Commission, the department sees no reason not to allow llamas under the same provisions that currently apply to equines.
Current §59.134(c)(3)(B) creates an offense for the introduction of any species of animal life within a state park. The department has recently encountered situations in which park visitors intentionally and unintentionally introduced exotic wildlife to state parks. The introduction of wildlife, especially exotic wildlife, presents a threat to native ecosystems and habitats. In order to protect and better manage the lands held by the department for the enjoyment of the public, the department believes it is prudent to expressly prohibit the introduction of wildlife except as may be specifically authorized by the Parks and Wildlife Code or the executive director.
Current §59.134(d) creates an offense for the display or discharge of arms in a state park except in certain listed situations. The definition of “arm and firearm” §59.131(1) includes archery equipment. Although the current rules of conduct in state parks allow the display and use of arms and firearms when being used in authorized public hunting activities, the rules do not address the use of archery equipment for the take of nongame fish during authorized angling activities. The proposed amendment would remedy that oversight. Subsection (d) would also update this provision to address situations in which a person is carrying a handgun in compliance with applicable handgun laws.
The proposed amendment to §59.134(f) would add language to clarify that it applies to activities conducted under permit as well as to activities conducted following the payment of a fee.
The proposed repeal of §§59.191-59.193, concerning Relocation Assistance in Park Acquisition Projects is necessary because the rules no longer serve a purpose. The proposed repeals constitute a repeal of Subchapter G.
The proposed repeal of §59.330, concerning Eligibility of Donated Land for Acceptance and Inclusion in State Park System is necessary because the provisions of that section have been incorporated in proposed new §59.142. The proposed repeals constitute a repeal of Subchapter K.
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 repeals 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 repeals affect Parks and Wildlife Code, Chapters 11 and 13.
§59.1. General Statement.
§59.2. Park Entrance and Use Fees.
§59.3. Activity and Facility Use Fees.
§59.4. Reservation of State Park Facilities.
§59.5. Outsourcing the Sale of State Park Passes.
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 new rules 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; 3.018(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 new rules affect Parks and Wildlife Code, Chapters 11 and 13.
§59.1. Establishment of Fees. For the purposes of this subchapter, “state park” or “park” means a state park, state natural area, state historic site, or state park and historic site under the department’s jurisdiction.
(1) The Executive Director (executive director) of the Texas Parks and Wildlife Department (department) shall interpret and implement this subchapter to obtain maximum benefits for the people of Texas in their enjoyment of the state park system and in the expansion, improvement, and perpetuation of the system for the use and enjoyment of present and future generations.
(2) The executive director by executive order shall:
(A) designate state park entrance, activity, facility, and use fee amounts within the fee ranges established by the commission in this subchapter and may establish any such fees to apply on a yearly, seasonal, monthly, weekly, or daily basis;
(B) provide for any waiver or discounting of entrance, activity, facility, or use fees:
(i) when circumstances adversely affect public enjoyment of the recreational opportunities normally available: or
(ii) to enhance utilization or to promote the future use of existing facilities or activities; and
(C) establish a fee schedule for replacing or duplicating evidence of fee payment (receipt/window sticker etc.).
(3) The executive director by executive order may designate other department personnel to discount or waive fees in accordance with a written policy for the discounting or waiver of fees.
(4) The establishment and collection of fees and fee waivers shall be consistent with sound management of financial resources and strong fiscal controls.
§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) An entrance/day use permit allows unlimited entry privileges to a person for the period of time specified by the permit.
(2) Entry privileges cease at the posted closing time unless an overnight facility use fee has also been paid.
(3) 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 imposed at designated parks.
(c) The department may designate or contract for a single fee that includes entrance, facility use, activity, tour, or other applicable fees. Entrance fees may be incorporated into facility use, activity, tour or other applicable fees.
§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) all occupants in the same vehicle with the holder of the annual park entrance pass if the holder of the annual park entrance pass is entering by noncommercial motor vehicle ;
(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 bicycle or on foot .
(B) An annual park entrance pass is valid only for private, noncommercial use and is not valid for:
(i) buses or similar vehicles; or
(ii) commercial use such as guided tour groups.
(C) An annual park entrance pass is not valid unless presented by the person named on the pass.
(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) The fee for an annual park entrance pass that is part of a promotional drawing under the provisions of §51.750 of this title (relating to Promotional Drawings), of this title is $0.
(2) Youth Group Annual Entrance Pass.
(A) A youth group annual entrance pass authorizes entry to any state park without payment of an individual entrance fee for up to a total of 50 persons belonging to a nonprofit youth organization.
(B) The department on a case-by-case basis may limit the number of adult supervisors entering a park under this subsection. Vehicles entering a park under a single youth group pass may be subject to additional fees if the number of vehicles exceeds the vehicle capacity for the campsite.
(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) A youth group annual entrance pass is valid for 12 months from date of purchase.
(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) Except as otherwise provided in this subsection, a state parklands passport authorizes the entry of the person to whom it was issued to any state park without payment of an individual entrance fee, and includes a discounted individual entry fee of 50% for one person accompanying and providing assistance to the passport holder. For the purposes of this paragraph, "accompanying" means entering a park simultaneously with the passport holder.
(B) To be eligible for issuance of a state parklands passport under the provisions of Parks and Wildlife Code, §13.018(a)(3), a person must submit government-issued personal identification and one of the following:
(i) an Award of Benefits Letter or a Statement of Benefits from the Social Security Administration that attests to the applicant’s permanent disability; or
(ii) an affidavit or attestation on a form approved by the department certifying that the applicant meets the requirements of Parks and Wildlife Code, §13.018(a)(3) and this subsection.
(C) A state parklands passport holder whose date of birth is after August 31, 1930 may enter any state park upon payment of 50% of the posted entrance fee for the park, rounded to the nearest higher whole dollar.
(D) A parklands passport is nontransferable.
(E) The department may impose a fee for a replacement state parklands passport.
§59.4. Activity and Facility Use Fees.
(a) A person authorized to use a facility overnight may remain in the facility from the time of admission until 2 p.m. on the day of checkout and may remain in the park until the posted closing time, unless otherwise clearly and prominently posted at the park.
(b) Fee ranges — facility use:
(1) campsites — $4.00-$36;
(2) cabins and shelters — $15-$200;
(3) group day use facility (recreation/meeting hall/dining hall) — $50-$1,000;
(4) group day use area — $17-$200;
(5) group overnight use facility(bunkhouses, barracks, campsites, shelters), variable by facility type or number of occupants — $100 — $1,500;
(6) bunkhouse/hotel/motel room — $35-225;
(7) excess vehicle parking(per vehicle) — $1.00-$6.00(parking areas designated by park superintendent);
(8) excess occupancy fee (in addition to facility use fee), per person — $1.00-$25;
(c) Fee ranges — activities:
(1) seasonal or annual activity pass — $25-$325;
(2) swimming pools use:
(A) adults — $2.00-$6.00;
(B) child – six to twelve years of age — $1.00-$4.00(children under six free);
(C) group use(before or after normal operating hours) — $35-$750
(3) golf course use:
(A) green fees — daily — $7.00-$15;
(B) golf trail fee for privately owned golf carts:
(i) daily — $3.00-$12.00; and
(ii) annual — $50-$175;
(4) activity use fee per person (day or overnight) — $2.00-$50;
(5) lake use fee — $5.00-$15;
(6) visitor shuttle fee per person — $2.00-$10;
(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 — $.25-$1,000;
(8) educational seminar fee — variable according to type of seminar, size of group and other applicable considerations;
(9) Equipment rental fee — variable according to type of equipment and other applicable considerations.
(d) Park impact fees.
(1) Park impact fees may be assessed for special events, media productions, commercial uses, or other activities that:
(A) restrict or impact the use of a park by other users;
(B) necessitate additional labor or operating expenses for the department; or
(C) impact park facilities or resources.
(2) Park impact fees shall be established by contract with the department. The amount of a park impact fee shall be set for each event based on costs incurred by the department, visitor and resource impact values, and any benefits provided to the department. A contract under this paragraph shall also establish any privileges and restrictions.
(3) Park impact fees may be combined or packaged with other use and/or concessions fees.
(e) Special hunting access permits. Special hunting access permits allow entry to parks by persons selected for public hunting activities.
§59.5. Reservation of State Park Facilities. Reservations for park facilities may be accepted for park units designated by the executive director. The executive director is authorized to prescribe such procedures and conditions for reservations, consistent with applicable law.
The repeals are proposed under Parks and Wildlife Code, §13.001(c), which requires the commission to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011(b), which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; and §13.0075, which requires the commission to adopt criteria for determining the eligibility of real property that is donated to the department for inclusion in the state parks system.
The proposed repeals affect Parks and Wildlife Code, Chapter 13.
§59.41 General Statement
§59.42 Chronology and Thematic Organization
§59.43 Acquisition Guidelines
§59.44 Development Guidelines
§59.45 Methods of Additional Funding Other Than Departmental
§59.46 Maintenance Guidelines
§59.47 Personnel Selection and Training Guidelines
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 new rules are proposed under Parks and Wildlife Code, §13.001(c), which requires the commission to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011(b), which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; and §13.0075, which requires the commission to adopt criteria for determining the eligibility of real property that is donated to the department for inclusion in the state parks system.
The proposed new rules affect Parks and Wildlife Code, Chapter 13.
§59.42. Land Acquisition Guidelines (including donations).
(a) The commission finds that there are many factors that affect the suitability of land for use as a state park, natural area or historic site, and objectively quantifying the relative value of one tract over another can be difficult or impossible. Nonetheless, all potential acquisitions (including donations) are evaluated for their attributes with respect to the categories delineated in this section. The relative importance of each parameter within the categories will vary from proposal to proposal, depending upon the specific needs and goals of the department at the time of consideration.
(1) Contribution to Land and Water Resources Conservation and Recreation Plan. The department will consider whether the addition of land for inclusion in the state parks system is consistent with the department’s Land and Water Resources Conservation and Recreation Plan.
(2) Contiguity with existing land in the state parks system. The land is near, adjacent to, or within the boundaries of an existing unit of the state parks system.
(3) Recreational value. The land possesses a high potential for providing popular, strategic, or critical opportunities for recreational enjoyment of the natural world by the public. Such potential is characterized by:
(A) water features such as springs, creeks, bayous, rivers, lakes, or coastline;
(B) landforms such as mountains, hills, canyons, etc., that are suitable for hiking, camping, or other types of outdoor use that are typically sought after or enjoyed by the public;
(C) underground features such as caves, caverns, or sinkholes;
(D) significant aesthetic resources, such as views or panoramas; or
(4) Natural resource value. The land:
(A) contains a high-value natural feature or features;
(B) is habitat for rare or endangered species of plants or animals;
(C) reflects a representative ecosystem of the state or could be restored or managed to reflect a natural ecosystem; or
(D) significant geological or paleontological resources.
(5) Historical or Interpretive value. The land provides significant cultural or historical resources or interpretive value consistent with the department’s Land and Water Resources Conservation and Recreation Plan.
(6) The land fills a gap in the inventory of natural or cultural resources or recreational opportunities offered by the state park system.
(7) Ancillary values. The land offers or contains significant or valuable:
(A) viewsheds;
(B) wildlife corridors;
(C) watersheds; or
(D) buffers for existing parkland from development or other incompatible land uses.
(8) Size. The department shall consider the size of a parcel of land as it relates to the factors set forth in paragraphs (1)-(5) of this subsection.
(A) Small parcels (less than 500 acres) should normally be contiguous to existing properties in the state park system to be considered, unless the value of the parcel in terms of the criteria listed in paragraphs (1)-(5) of this subsection is such that the department has a compelling interest in acquiring the land.
(B) Large parcels (greater than 500 acres) need not be contiguous to existing properties within the state park system to be considered for acquisition, provided that acquisition is consistent with the department’s Land and Water Resources Conservation and Recreation Plan.
(9) Other criteria. The department will consider other criteria, including, but not limited to cost effectiveness, source or availability of funding, access, deed restrictions, potential threats to future operations from mineral activity, use agreements, previous land uses, operating and maintenance costs or any other factors would make the use of the land undesirable, impractical, or problematic.
(b) No land will be added to the state park system unless the land is formally accepted by the Texas Parks and Wildlife Commission voting in open session. The Texas Parks and Wildlife Commission, in its sole discretion, may accept or decline any proposed donations of land for inclusion in the state park system.
§59.44. Development Guidelines.
(a) Development of facilities within state park system units will be limited to structures and associated infrastructure that advance department purposes or serve visitor needs.
(b) Facility development shall be consistent with applicable Master Plans, Preservation Plans and other guidance documents relating to the property.
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, 13.015(b), which authorizes the department to operate or grant contracts to operate concessions in state parks or on causeways, beach drives, or other improvements in connection with state park sites and to make regulations governing the granting or operating of concessions.
The proposed amendments affect Parks and Wildlife Code, Chapter 13.
§59.101. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Concessioner — Any person, partnership, or corporation granted leased concession rights or privileges.
(2) Concessions — Those services and accommodations offered to the public in state parks for which charges, fees, admissions, or similar assessments are collected, excluding park entrance and facility use fees.
(3) Franchise fee — The annual fee or percentage of gross receipts a concessioner pays to the department[state] for park concession rights or privileges.
(4) Leased concessions — Rights or privileges granted by the department to any individual, partnership, or corporation to provide visitor services and accommodations for profit within the boundaries of a state park.
(5) State park or park — A state park, state natural area, state historic site, or state park and historic site under the department’s jurisdiction.
[(5) Prospectus — A public statement issued by the department giving information on the availability of a leased concession as to location, visitor services and accommodations to be provided, capital and operating investment needed, business experience or other knowledge required, and the procedure to follow in submitting a concession proposal.]
[(6) State-operated concessions — Visitor services and accommodations operated by park personnel.]
[(7) Partnership Concessions — Visitor services and accommodations operated by a non-profit park volunteer support group.]
§59.102. General Requirements for Leased Park Concessions.
(a) Park visitor services and accommodations may be operated by a concessioner under contractual arrangements with the department. Park concessions shall be limited to visitor services and accommodations that are necessary and appropriate for public use and enjoyment of the state park area in which they are to be located, and that are consistent to the highest practical degree with the preservation and conservation of the area. [When adequate services and accommodations exist outside a park within a reasonable distance, every attempt will be made to avoid the duplication of same products and services.]
(b) Except as noted in this paragraph, all building and land improvements for overnight or day-use accommodations in state parks for which user fees are charged shall be developed at state expense. The department shall be responsible for the operation and maintenance of overnight and day-use facilities developed with state funds and shall also be responsible for the collection of user fees unless this responsibility has been specifically delegated to a concessioner. In the event cabins, lodges, or other buildings and structures are deemed essential for the public’s full enjoyment of an area, and state funds are not available in priority for their development, the commission may authorize facilities to be constructed, operated, and maintained with private capital.
[(c) Park visitor services and accommodations in the following categories may be operated by a concessioner under contractual arrangements: ]
[(1) food and merchandise sales;]
[(2) equipment rentals for recreational use;]
[(3) merchandise vending machines;]
[(4) marine supplies and services;]
[(5) horse livery;]
[(6) transportation;]
[(7) automotive supplies and services;]
[(8) fishing piers and fishing marinas;]
[(9) facilities for accommodating overnight visitors; and]
[(10) visitor services to interpret parks and natural and cultural resources].
(c)[(d)] In parks where certain facilities for visitor services and accommodations have been provided at state expense, a concessioner may be permitted to use said buildings, structures, and installations provided he assumes full responsibility for their maintenance and repair due to normal wear and tear.
(d)[(e)] The executive director, subject to the provisions of commission policy, shall take such action as may be appropriate to encourage or enable the use of private capital to provide visitor services and accommodations necessary for the full enjoyment of park areas administered by the department.
§59.103. Selection of a Concessioner.
(a) The granting, termination, amendment, transfer, assignment, and enforcement of all leased concession contract requirements and provisions of such contracts is delegated to the executive director.[When it is determined by the executive director that the leasing of a park concession is necessary, desirable, and financially feasible for furnishing visitor services and accommodations in a park area, or when it is necessary to secure a new concessioner for a leased concession, a prospectus announcing the availability of such concession shall be issued to all interested persons, detailing essential information about the concession, and the procedure to follow in submitting a proposal. The executive director or his designee shall fully publicize the availability of a concession in the immediate area of the park and on a state or national level when circumstances warrant a broader coverage. ]
(b) Recruitment and selection of concessioners for a leased concession within a state park shall be accomplished in a manner appropriate for the scale of the investment and term of the business opportunity, ensuring that the selection process is fair and equitable, and in compliance with applicable contracting laws.
(c)[(b)]A concessioner will be selected with great care to ensure[insure] that the concessioner has the[he has] ability to successfully operate the concession in compliance with the contract between the concessioner and the department[an entirely satisfactory manner.
In addition to ample financing and ability to conduct the concession in an economical manner, the concessioner should conduct his operation in accordance with the ideals and objectives of the department by adhering to business practices that emphasize public service in addition to a profit motive, and are consistent to the highest practical degree with the preservation and conservation of the area. The department may disregard any or all proposals submitted, or make any counter proposal it may consider reasonable or desirable in accordance with commission policy].
[(c) The granting, termination, amendment, transfer, assignment, and enforcement or all concession contract requirements and provisions of such contracts is delegated to the executive director. Program staff will conduct a comprehensive review of all information contained within the submitted proposal. Following review, the agency will conduct personal interviews of each submitter for the purpose of recommending a candidate as the prospective concessionaire. The agency, at its discretion, may empanel a review board consisting of agency staff, and the local community, industry experts, or other individuals relevant or pertinent to the selection.]
[(d) The executive director may terminate a contract upon finding that a material breach of the contract has occurred.]
§59.105. Leased Concession Contract Terms.
(a) All contracts [The standard form contract] shall be executed for a term [of years] commensurate with the size of the total investment required of the concessioner. The duration of a contract shall be set for a period of time to allow for a reasonable opportunity for return on investment.
(b) Franchise fee rates shall be determined by the executive director or his designee in an equitable and fair manner, giving consideration to the various types of operations, gross receipts, net profit, and capital invested. Single or multiple percentages applied to all or various kinds of gross receipts may be considered in new or amended contracts[Revocable short-term contracts shall be issued for a term of two years or less].
(c) The penalties and interest assessed for delinquent franchise fees shall be stated in the contract, but may not exceed the penalties and interest rate established in the Texas Tax Code §111.060 and §111.061. [Revocable temporary contracts shall be issued for a term of 6 to 18].
(d) Penalties and/or interest under this section may be waived by the executive director or designee for good cause.
(e) The rates and charges prescribed by the concessioner shall be subject to the approval of the executive director or designee. The reasonableness of the concessioner’s rates and charges to the public shall be judged primarily by comparing with current charges for facilities and services of comparable character under similar conditions. Consideration shall be given to factors deemed relevant to the type of concession, location, and business conditions.
(f)[(d)] No renewal rights shall be made a part of any concession contract.
§59.107. Accounting.
(a) Concessioners[The concessioner] shall submit reports and keep such records in such a manner as the executive director may prescribe to enable the department to determine that all terms and conditions of the concession contract have been and are being faithfully performed.
(b) The state auditor, or duly authorized representative of the department, shall, for the purpose of audit and examination, have access to records and other books, documents, and papers of the concessioner pertinent to the contract.
§59.108. Bond and Insurance.
(a) The executive director may require the concessioner to furnish a bond conditioned upon the faithful performance of a[his] contract. When the contract award involves construction or other impacts to the park[of public accommodations], the concessioner [concessionaire] will be required to obtain a payment bond, in addition to other statutory bonding requirements, and may be required to take other actions to ensure the protection of the interests of the department and the public.
(b) The concessioner shall carry such liability insurance as deemed appropriate by the department[insurance against losses by fire, public liability, employee liability, and other hazards as is customary among prudent operators of similar businesses under comparable circumstances, and in amounts satisfactory to the department. The executive director has the authority to increase this limitation when conditions warrant such action].
§59.109. Furnishing Utilities.
(a) The department may furnish utilities to the concessioner.
(b) When it is not feasible for the department to meter utilities supplied to the concessioner, a reasonable rate fixed by the department for the concessioner’s monthly consumption may be assessed and included in the concession contract terms [shall be due upon receipt of notification].
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, §13.101, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; and §13.102, which authorizes the department to make regulations governing the conservation, preservation, and use of state property whether natural features or constructed facilities; the abusive, disruptive, or destructive conduct of persons; the activities of park users including camping, swimming, boating, fishing, or other recreational activities; the possession of pets or animals; the regulation of traffic and parking; and conduct which endangers the health or safety of park users or their property.
The proposed amendments affect Parks and Wildlife Code, Chapter 13.
§59.131. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) – (19) (No change.)
(20) Wildlife — A species, including each individual of a species, that normally lives in state of nature and is not ordinarily domesticated.
§59.133. Closing Hours and Overnight Use.
(a) The director by written order may establish closing hours and opening hours for a state park or a portion of a state park. Closing hours or opening hours shall be posted.
(b) The director or designee may close a state park as necessary to protect public health and safety during emergency conditions, resource management activities, construction projects or other management purposes.
(c)[(b)] Except for persons authorized by the department to use a camping facility, trailer space, shelter, cabin or lodge facilities, or boat ramp, or for persons who have paid the overnight activity use fee, it is an offense for a person to enter into or remain within a state park between the closing hour and the opening hour.
§59.134. Rules of Conduct in Parks.
(a) – (b) (No change.)
(c) Animals. Except as provided in this subsection, it is an offense for any person to bring into a state park, possess while in a state park, or release into a state park any species of animal. A pet, equine, or llama[pet or equine] may be brought into and possessed within a state park as provided in this subsection.
(1) Equine or llama. It is an offense for any person to:
(A) ride, drive, lead, or keep an equine or llama,[equines,] except in designated areas;
(B) ride an equine or llama[equines] in a manner that is dangerous to a person or animal;
(C) allow an equine or llama[equines] to stand unattended or insecurely tied; or
(D) hitch an equine or llama[equines] to a tree, shrub, or structure in any manner that may cause damage.
(2) (No change.)
(3) 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 from a unit of the state park system, except by a permit issued by the director or as provided by the Parks and Wildlife Code, Chapter 62, Subchapter D;
(B) release or introduce any species of animal life within a park (including waters within a park)[any fish into the waters of any state park], except as authorized by the Parks and Wildlife Code and written order of the Executive Director or designee; or
(C) (No change.)
(d) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm in a state park, unless:
(1) the person is participating in a public hunting activity within the state park that has been authorized by written order of the director so long as the person is in compliance with the applicable public hunting rules and regulations; [or]
(2) the person is fishing by means of lawful archery equipment or is participating in an authorized, supervised recreational or educational activity;
(3) the person is licensed to possess and carry a handgun under Government Code, Chapter 411, Subchapter H, and is in possession of and/or carrying the handgun in compliance with applicable law, including, but not limited to, applicable regulations adopted pursuant to Government Code, Chapter 411, Subchapter H ; or
(4)[(2)] the person has been authorized by written order of the director.
(e) (No change.)
(f) Entrance and User Fees and Permits: It is an offense for any person to enter, use, or occupy a facility in any portion of a state park for which a fee has been established or a permit is required[,] unless the person has first paid the fee or satisfied the requirements of the permit[fee], has received an entrance/use permit issued by the department, [and] has displayed [attached] the permit [to their vehicle] as [and when] required [by the permit], and agrees to comply with applicable permit conditions. If the office is closed, payment must be made according to posted instructions or signage.
(g) – (q) (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 repeals are proposed under Parks and Wildlife Code, §13.001(c), which requires the commission to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011(b), which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; and §13.0075, which requires the commission to adopt criteria for determining the eligibility of real property that is donated to the department for inclusion in the state parks system.
The proposed repeals affect Parks and Wildlife Code, Chapter 13.
§59.191. Definitions.
§59.192. Purpose.
§59.193. Procedures.
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 repeal is proposed under Parks and Wildlife Code, §13.0075, which requires the commission to adopt criteria for determining the eligibility of real property that is donated to the department for inclusion in the state parks system.
The proposed repeal affects Parks and Wildlife Code, Chapter 13.
§59.330. Eligibility of Donated Land for Acceptance and Inclusion in State Park System.
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