Commission Agenda Item No. 4
Presenter: Tim Spice

Action
Boater Education Fee Rules
Recommended Adoption of Proposed Changes
November 7, 2019

I.      Executive Summary: With this item, the staff seeks adoption of proposed amendments to the rules governing boater education.

The proposed amendments would:

II.     Discussion: Under Texas Parks and Wildlife Code section 31.109, no person born on or after September 1, 1993 may operate a personal watercraft, motorboat powered by a motor of greater than 15 horsepower or a windblown vessel over 14 feet in length on public waters unless that person possesses evidence of successful completion of a boater education course approved by TPWD.

The staff has determined that due to the popularity of online education, certain more traditional elements of course delivery can be eliminated. Additionally, the staff seeks to provide an exemption to personnel of the military branches and the Merchant Marine who by virtue of their training and or occupation have already met or exceeded any requirement of state law in terms of boating safety, as well as those possessing a Canadian Pleasure Craft Operator Card.  Lastly, the staff seeks to eliminate problematic internal administrative processes related to the assessment and collection of fees by third party providers of boater education courses.

At the August 21, 2019 Texas Parks and Wildlife Commission Work Session meeting, the staff was authorized to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the September 13, 2019 issue of the Texas Register (44 TexReg 4966, 4967). A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  The staff recommends the Texas Parks and Wildlife Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts the amendments to §51.81, concerning Mandatory Boater Education, and §53.50, concerning Training and Certification Fees, with changes as necessary to the proposed text as published in the September 13, 2019, issue of the Texas Register (44 TexReg 4966, 4967).”

Attachments – 2

  1. Exhibit A – Proposed Boater Education Rules
  2. Exhibit B – Proposed Fee Rule

Commission Agenda Item No. 4
Exhibit A

BOATER EDUCATION RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §51.81, concerning Mandatory Boater Education. The proposed amendment would eliminate provisions regarding classroom elements of boater education, provide for exceptions to mandatory boater education requirements, and effect nonsubstantive housekeeping changes.

        The Texas Water Safety Act (Parks and Wildlife Code, Chapter 31) requires persons born after September 1, 1993 to complete an approved boater education course before legally being able to operate a vessel of more than 15 horsepower, a windblown vessel of more than 14 feet in length, or a personal watercraft alone in public water. Almost all boater education is now provided via online and distance education modalities, making classroom components obsolete. Therefore, the proposed amendment would eliminate the requirement that a student attend at least six hours of training and be evaluated by an instructor. The proposed amendment also would eliminate the home study program, which the department has determined is not utilized enough to justify continuance and reword a provision governing the waiting period between examinations to make it clear that the provision applies to the equivalency examination and not a course examination.

        Additionally, the proposed amendment would require a background check to be conducted for persons seeking to become certified boating education instructors, which the department deems prudent in order to ensure that persons delivering boater education instruction under the aegis of the department are of sufficient character. The proposed amendment would also eliminate subsection (g), which is unnecessary because the provision applies only to persons who are exempt from mandatory boater education requirements by age.

        Finally, the proposed amendment would exempt certain members of the armed services and Merchant Marine from boater education requirements, as well as persons who possess a Canadian Pleasure Craft Operator’s Card. The department recognizes that that there are personnel of the military branches and the Merchant Marine who by virtue of their training and or military occupation specialty have already met or exceeded any requirement of state law in terms of boating safety and that requiring such personnel to obtain boater education certification would be redundant and ineffective. Similarly, there is a Canadian equivalent to the boater education standards developed for the United States. The department sees no need to require persons who have obtained a Canadian Pleasure Craft Operator’s Card to also obtain boater education certification in Texas.

2. Fiscal Note.

        Tim Spice, Boating Safety Education Manager, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule

3. Public Benefit/Cost Note.

        Mr. Spice also has determined that for each of the first five years the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the continued availability of convenient boater education certification and the continued public safety benefits associated with reduced accident rates, insurance costs, and enforcement costs that are proven to result from boater education courses.

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

        (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that there will be no direct economic impacts on small businesses, microbusinesses, or rural communities. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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

        (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 rule.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) will not create a new regulation;

                 (6) limit an existing regulation (by eliminating classroom components of boater education) but will not expand or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Tim Spice, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8141 (email: tim.spice@tpwd.texas.gov).

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, §31.108, which requires the commission to adopt rules to administer a boating education program.

        The proposed amendment affects Parks and Wildlife Code, Chapter 31.

        §51.81. Mandatory Boater Education.

                 (a) – (b) (No change.)

                 (c) The course is successfully completed when the student [:]

                         [(1) attends at least six hours of training;]

                         [(2) is evaluated by the instructor as acceptable in attitude, knowledge and skill; and]

                         [(3)] scores a minimum of 70% on a course exam prescribed by the department.

                 (d) In lieu of a course, a person may complete an equivalency exam process consisting of a multiple-choice exam proctored by an agent appointed by the department or accessed through a department-sponsored web site.

                         (1) Equivalency [Home study and equivalency] exam passage shall be set at a minimum 80 percent passing score.

                         (2) A person who fails the equivalency exam must wait at least 24 hours to[may] retake it [one time at least 24 hours after the time of first completion].

                 (e) (No change.)

                 (f) The department shall:

                         (1) train and certify boater education instructors upon completion of an application, background check, game warden interview and proof of student and instructor course completion;

                         (2) – (3) (No change.)

                 [(g) In addition to those exemptions established in Parks and Wildlife Code, §31.110, and authorized in §31.108(b), persons who have successfully completed a "voluntary boater education course" previously administered or approved by the department are exempt from the requirements established in this subchapter.]

                 (g)[(h)] A person 18 years of age or older may obtain a one-time deferral from the boater-education requirements of Parks and Wildlife Code, §31.109, after paying the fee established in §53.50 of this title (relating to Training and Certification Fees) to the department.

                         (1) A deferral under this subsection does not authorize any person to supervise the operation of a vessel by any other person.

                         (2) A boater education deferral is valid for 15 consecutive days beginning on the date of purchase and ending at midnight of the 15th day following purchase.

                (h) The following are exempt from the boater education requirements of Parks and Wildlife Code, §31.109:

                         (1) a member of the Armed Forces of the United States on active or reserve duty who is qualified as an officer of the deck underway, boat coxswain, boat officer, watercraft operator, or marine deck officer;

                         (2) a member of the United States Merchant Marine; and

                         (3) a person who possesses a valid Canadian Pleasure Craft Operator’s Card issued in the person’s name.

                 (i) A person engaged in showing, testing, or demonstrating boats under Parks and Wildlife Code, §31.041(d), is exempt from the boater education course requirement while showing, testing, or demonstrating a boat.

        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. 4
Exhibit B

BOATER EDUCATION FEES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §53.50, concerning Training and Certification Fees. The proposed amendment would eliminate the current provision requiring a service fee schedule to be established by the executive director, a provision exempting an online provider of boater education from collecting and forwarding a $10 fee to the department, and a provision establishing that the fees required by the section do not affect enhanced content offered by a boating education provider.

        The Texas Water Safety Act (Parks and Wildlife Code, Chapter 31), requires persons born after September 1, 1993 to complete an approved boater education course before legally being able to operate a vessel of more than 15 horsepower, a windblown vessel of more than 14 feet in length, or a personal watercraft alone in public water.

        Parks and Wildlife Code, §31.108 allows the department to appoint agents to administer a boater education course or course equivalency examination. Section 31.108 requires agents to collect and forward to the department a $10 course or examination fee and allows agents to collect and retain a service fee.  The department has determined that the statutory provisions of Parks and Wildlife Code, §31.108(b) do not apply to the provision in current rule exempting agents from the requirement to collect and forward to the department a $10 course or examination fee. The department has also determined that because there are a number of easy, and in some cases free, options for persons to obtain boater education, it is unnecessary to cap the amount of a service fee that a provider may charge a customer for a boater education course; therefore, the proposed amendment would eliminate the service fee cap and the provision requiring the executive director to establish a fee schedule for that purpose. The proposed rule would have the effect of defaulting to the requirements imposed by statute.

2. Fiscal Note.

        Mr. Tim Spice, Boating Safety Education Manager, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to the department as a result of enforcing or administering the rule. The department estimates that there will be a revenue increase of approximately $225,000 in Fiscal Year 2020, increasing by approximately 10 percent per year thereafter, as a result of internet providers collecting and forwarding to the department a fee of $10 per boater education participant.

        There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

        Mr. Spice also has determined that for each of the first five years the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the continued availability of convenient boater education certification and the continued public safety benefits associated with reduced accident rates, insurance costs, and enforcement costs that are proven to result from boater education courses.

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

        (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that there will be no direct economic impacts on small businesses, microbusinesses, or rural communities. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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

        (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 rule.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) will not create a new regulation;

                 (6) expand an existing regulation (by eliminating the exemption for the requirement to collect and forward a fee to the department for online boater education) but will not limit or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Tim Spice, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8141 (email: tim.spice@tpwd.texas.gov).

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, §31.108, which requires the commission to adopt rules to administer a boating education program.

        The proposed amendment affects Parks and Wildlife Code, Chapter 31.

        §53.50. Training and Certification Fees.

                 (a) – (b) (No change.)

                 (c) Boater education fees.

                         (1) (No change.)

                         (2) An [Except as provided in paragraph (4) of this subsection, an] agent shall collect a $10 per person examination or course fee and forward that fee to the department within 30 days after the examination or course is administered.

                         (3) In addition to the examination or course fee described in paragraph (2) of this subsection, an agent may charge and keep a service fee. [in an amount established in a fee schedule approved by the director, which shall not exceed $25].

                         [(4) An agent providing an Internet-based boater education course and examination is exempt from the requirement to collect and forward to the department the $10 examination or course fee.]

                         [(5) The fees established in this subsection apply only to course content necessary to satisfy the minimum requirements for boater education certification in Texas. Nothing in this subsection shall be construed to prohibit an agent from providing and charging a fee for enhanced content.]

                         (4) [(6)] The fee for obtaining a boater education deferral is $10.

        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