TPWD: November 10, 2020 Commission Meeting Agenda

November 9-10, 2020, Commission Meeting Agenda

Work Session

Commission Agenda Items

August 26-27, 2020, Transcripts

Commission Agenda Item No. 2
Presenter: James Murphy

Action
Rule Review
Recommended Adoption of Proposed Changes and Completed Rule Review
November 10, 2020

I. Executive Summary: With this item, the staff seeks adoption of proposed rulemaking resulting from the first stage of the quadrennial review of Texas Parks and Wildlife Department (TPWD) regulations required by the Texas Administrative Procedure Act. The proposed rulemaking affects the following chapters of Title 31 of the Texas Administrative Code: 51 (Administration) and 55 (Law Enforcement).

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 Following the review, rules must be readopted, adopted with changes, or repealed based on the review.

The TPWD rule review process is broken into three groups of chapters within the Texas Administrative Code that contain TPWD regulations. The process for each chapter occurs over three Texas Parks and Wildlife Commission (Commission) meetings. In the first meeting, the staff seeks permission to begin the rule review process and to publish notice of the rule review in the Texas Register. In the second meeting, the staff seeks permission to publish any proposed rule changes or repeals resulting from the rule review in the Texas Register for public comment. In the third meeting, the staff seeks adoption of proposed rule changes and adoption of the completed rule review (i.e., readoption of the remaining unchanged rules).

At the May 2020 Commission meeting, the staff received permission to publish a Notice of Intent to Conduct Rule Review for Chapters 51, 52, 55, 60, and 61. The proposed notice was published in the July 17, 2020, issue of the Texas Register (45 TexReg 5015). TPWD received no public comment regarding the proposed review.

Staff received permission to publish the proposed rules at the August 26, 2020 Work Session meeting. The proposed changes were to Chapters 51 and 55, along with a proposed conforming change to §53.50, concerning Training and Certification Fees. The proposed rules were published in the September 25, 2020, issue of the Texas Register (45 TexReg 6704, 6705, 6706, 6708, 6709, 6711, and 6712). A summary of public comment will be presented at the time of the meeting.

III. Recommendation: The staff recommends that the Commission adopt the proposed motions:

Motion one: “The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §51.80, concerning Mandatory Hunter Education Course and Instructors; an amendment to 31 TAC §51.141, concerning Sick Leave Pool; the repeal of 31 TAC §51.642, concerning the San Jacinto Historical Advisory Board (SJHAB); an amendment to 31 TAC §53.50, concerning Training and Certification Fees; amendments to 31 TAC §55.302 and §55.303, concerning Boat Speed Limit and Buoy Standards; amendments to 31 TAC §55.401 and §55.402, concerning Party Boats; and the repeal of 31 TAC §55.805 and amendments to §§55.802, 55.804, and 55.807, concerning Marine Safety Enforcement – Training and Certification Standards, with changes as necessary to the proposed text as published in the September 25, 2020 issue of the Texas Register (45 TexReg 6704, 6705, 6706, 6708, 6709, 6711, 6712).”

Motion two: “The Texas Parks and Wildlife Commission adopts the completed rule review of 31 TAC Chapters 51, 52, 55, 60, and 61 as published in the July 17, 2020, issue of the Texas Register (45 TexReg 5015), finding that the original reasons for adopting the rules continue to exist, as required by Government Code, §2001.039, and authorizes the publication of a Notice of Adopted Rule Review to that effect in the Texas Register.”

Attachments – 3

Exhibit A – Proposed Changes to Chapter 51
Exhibit B – Proposed Conforming Changes to Chapter 53
Exhibit C – Proposed Changes to Chapter 55

Commission Agenda Item No. 2
Exhibit A

LEGISLATIVE RULES REVIEW

CHAPTER 51. EXECUTIVE

SUBCHAPTER D – EDUCATION

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §51.80, concerning Mandatory Hunter Education Course and Instructors. The proposed amendment would alter the title of the section to read “Mandatory Hunter Education.” The proposed amendment would alter subsection (a) to reflect that a person may obtain a duplicate certificate of completion of hunter education requirements online and replaces a list of classes of persons exempt from hunter education requirements by statute with a reference to the statutory exemptions; alter subsection (b) to allow a reproduction of a certificate of completion stored on a wireless communication device to be accepted as proof of completion of hunter education; and alter subsection (c) to change references to “deferred hunter education option” to refer instead to “hunter education deferral.” All the changes are nonsubstantive. The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

Steve Hall, Hunter 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 administering or enforcing the rule.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be consistency with the Parks and Wildlife Code and agency publications.

There will be no adverse economic effect on persons required to comply with the rule.

(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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. 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.

(C) The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

(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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

(F) 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.

(G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create, expand, or repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

Comments on the proposal may be submitted to Steve Hall at (512) 389-8140, e-mail: steve.hall@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, §62.014(h), which requires the commission to make rules governing the hunter education program.

The proposed amendment affects Parks and Wildlife Code, Chapter 62.

6. Rule Text.

§51.80. Mandatory Hunter Education [Course and Instructors].

(a) Hunter Education Course.

(1) – (5) (No change.)

(6) The department shall issue a certificate to persons who successfully complete the course. A duplicate certificate may be obtained online at the department’s website at https://tpwd.texas.gov/education/hunter-education[issued upon request to the department’s hunter education section or in person to a law enforcement field office or department-approved instruction provider.]

(7) (No change.)

(b) Hunter Education Requirements.

(1) – (5) (No change.)

(6) A person who is required to be certified must possess evidence of certification while hunting in Texas, which may include a photograph or electronic copy of valid certification stored on a wireless communication device.

(7) – (8) (No change.)

(9) A person who is exempt from the hunter education requirements under the provisions of Parks and Wildlife Code, §62.014(n) is exempt from the requirements of this section[A person is exempt from live-firing requirements of the Hunter Education Course delivered via classroom instruction or a combination of online instruction and skills exercise if the person is:]

[(A) an honorably discharged veteran of the United States armed forces; or]

[(B) on active duty as a member of the United States armed forces, the Texas Army National Guard, the Texas Air National Guard, or the Texas State Guard.]

(1) (No change.)

(2) A person 17 years of age or older who is required to complete hunter education may hunt without certification if that person is:

(A) in possession of a valid hunting license indicating that the person has selected the “Hunter Education Deferral”["Deferred Hunter Education Option"] offered by the department; and

(B) (No change.)

(3) (No change.)

(4) A hunter education deferral[deferred hunter education option] expires at the end of the license year for which it was purchased.

(5) No person may select the hunter education deferral[deferred hunter education option] more than once.

(6) A person who has been convicted of or received deferred adjudication for not having completed a mandatory hunter education course is prohibited from obtaining a hunter education deferral[deferred hunter education option].

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

LEGISLATIVE RULES REVIEW

CHAPTER 51. EXECUTIVE

SUBCHAPTER E – SICK LEAVE POOL RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §51.141, concerning Sick Leave Pool. The amendment would eliminate the requirement that donations to the sick leave pool be made in writing. The department now utilizes CAPPS, an automated system used by all state agencies, and employees can now donate to the sick leave pool online. The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

Rebecca Gonzales, CAPPS Director in the Human Resources Division, 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 administering or enforcing the rule.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be regulations that accurately reflect agency processes with respect to the administration of the sick leave pool.

There will be no adverse economic effect on persons required to comply with the rule.

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

(F) 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.

(G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

Comments on the proposal may be submitted to Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendment is proposed under the authority of Government Code, §661.002, which requires the governing body of each state agency to adopt rules to prescribe procedures relating to the operation of the agency’s sick leave pool.

The proposed amendment affects Government Code, Chapter 661.

6. Rule Text.

§51.141. Sick Leave Pool. A sick leave pool is established to provide for the alleviation of hardship caused to an employee and the employee’s family if a catastrophic illness or injury forces the employee to exhaust all leave time earned by that employee and to lose compensation from the state.

(1) The director of human resources is designated as the pool administrator.

(2) The pool administrator, with the advice and consent of the executive director, will establish operating procedures consistent with the requirements of this section and relevant law governing operation of the pool.

(3) Donations to the pool are[must be made by written request containing a certification that the donation is] strictly voluntary.

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

LEGISLATIVE RULES REVIEW

CHAPTER 51. EXECUTIVE

SUBCHAPTER O – ADVISORY COMMITTEES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §51.642, concerning the San Jacinto Historical Advisory Board (SJHAB). House Bill 1422, enacted by the most recent session of the Texas Legislature, transferred the San Jacinto Battleground State Historic Site from the administrative jurisdiction of the department to the administrative jurisdiction of the Texas Historical Commission; therefore, the advisory board created by the department is no longer necessary in department rules. The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

Kevin Good, Special Assistant to the Parks Division Director, has determined that for each of the first five years that the repeal as proposed is in effect, there will be no fiscal implications to state or local governments.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the proposed repeal will be the elimination of unnecessary regulations.

There will be no adverse economic effect on persons required to comply with the repeal.

(C) The department has determined that proposed repeal would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

(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 repeal as proposed will not impact local economies.

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

(F) 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 repeal.

(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The repeal as proposed, if adopted, will not create a government program, but will a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation but will repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

5. Statutory Authority.

The repeal is proposed under the authority of Government Code, §2110.005 and §2110.008.

The proposed repeal affects Parks and Wildlife Code, §11.0162.

6. Rule Text.

§51.642. San Jacinto Historical Advisory Board (SJHAB).

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

Commission Agenda Item No. 2
Exhibit B

LEGISLATIVE RULES REVIEW

CHAPTER 53. FINANCE

TRAINING AND CERTIFICATION FEES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §53.50, concerning Training and Certification Fees. The proposed amendment would establish a fee of $10 for online marine safety enforcement officer instruction by a department-approved third-party provider and allow for the provider to charge and retain a service fee in addition to the $10 fee forwarded to the department. In a proposed rulemaking published elsewhere in this issue, the department proposes to create an online option for marine safety enforcement officer instruction.

The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

Cody Jones, Assistant Commander and Boating Law Administrator, 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 government as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

Assistant Commander Jones also has determined that for each of the first five years that the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be a fee schedule that reflects an online option for the provision of marine safety enforcement officer training.

There will be no adverse economic effect on persons required to comply with the rule.

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

(F) 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.

(G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

Comments on the proposal may be submitted to Assistant Commander Cody Jones, (512) 389-4624, e-mail: cody.jones@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, §31.121, which requires the commission to promulgate rules to establish and collect a fee to recover the administrative costs associated with the certification of marine safety enforcement officers.

The proposed amendment affects Parks and Wildlife Code, §31.121.

6. Rule Text.

§53.50. Training and Certification Fees.

(a) Marine safety enforcement training and certification fees.

(1) Except as provided in paragraph (2) of this subsection, the[The] fee for [certification as] a marine safety enforcement officer course is $25.

(2) The fee for a marine safety enforcement officer course delivered by a department-approved online provider shall be $10 per student. The provider shall forward the fee to the department within 30 days following course delivery.

(3) In addition to the examination or course fee described in paragraph (2) of this subsection, a course provider may charge and keep a service fee.

[(2) The fee for certification as a marine safety enforcement officer instructor is $25.]

(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

Commission Agenda Item No. 2
Exhibit C

LEGISLATIVE RULES REVIEW

CHAPTER 55. LAW ENFORCEMENT

SUBCHAPTER G. BOAT SPEED LIMIIT AND BUOY STANDARDS

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §55.302 and §55.303, concerning Boat Speed Limit and Buoy Standards. The proposed amendments would modify language regarding certain areas of public water regulated by political subdivisions. Parks and Wildlife Code, §31.092, provides authority to various types of local governments to designate areas of public water within their jurisdictions as bathing, fishing, swimming, or otherwise restricted areas and to make rules and regulations relating to the operation and equipment of boats deemed necessary for the public safety. Current rules make specific reference to “Slow, No Wake” zones, which the department has learned has caused some local entities to interpret the regulatory authority at their disposal too narrowly. By removing references to “Slow, No Wake” designations, the department hopes to make clear that a governing board has greater latitude than the authority to establish “Slow, No Wake” zones.

The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

Cody Jones, Assistant Commander and 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 government as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

Assistant Commander Jones also has determined that for each of the first five years that the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be rules that are easier to interpret by certain local authorities.

There will be no adverse economic effect on persons required to comply with the rule.

(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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. 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.

(C) The department has determined that proposed rules would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

(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 rules as proposed will not impact local economies.

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

(F) 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.

(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code §31.142, which authorizes the department to provide for a standard 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 amendment affects Parks and Wildlife Code, Chapter 31.

6. Rule 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) Department — Texas Parks and Wildlife Department.

(2) Governing board — The governing board of an incorporated city or town, a commissioners court of a county, or the governing board of a political subdivision of the state created pursuant to the Texas Constitution, Article XVI, §59, as identified in the Parks and Wildlife Code, §31.092(c).

(3) Headway speed — Slow, idle speed, or speed only fast enough to maintain steerage on course.

(4) Regulated area — Any area on public water designated and posted as a regulated["Slow, No Wake"] area by a[the] governing board as provided in Parks and Wildlife Code, §31.092.

[(5) Slow, no wake — Headway speed without creating a swell or wake.]

§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) [Regulated areas shall be designated and posted as "Slow, No Wake" areas.]

[(B)] Numerical speed limits, such as miles per hour, shall not be used on public waters.

(B)[(C)] Boat speeds outside of regulated areas shall be governed by the Parks and Wildlife Code, §31.095(a).

(C)[(D)] The governing board shall post and maintain regulated areas with buoys or pilings consistent with the system of markers authorized by this subchapter.

(2) Regulations governing water events and regattas administered by the United States Coast Guard are exempt from these rules to the extent of conflict.

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

LEGISLATIVE RULES REVIEW

CHAPTER 55. LAW ENFORCEMENT

SUBCHAPTER H. PARTY BOATS

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §55.401 and §55.402, concerning Party Boats. Under Parks and Wildlife Code, Chapter 31, Subchapter G, the department is required to license and regulate party boats, which are defined by statute as boats operated by the owner of the vessel or an employee of the owner and rented or leased by the owner for a group recreational event for more than six passengers. The department has encountered instances in which persons who own and operate party boats have erroneously interpreted the provisions in the rules that exempt livery vessels (a rented vessel for which operation and provisioning are the responsibility of the renter rather than the owner of the vessel) from the applicability of the rules to also exempt party boats from the statutory requirements of Parks and Wildlife Code, §31.040, which prescribes the licensing and titling requirements for livery vessels. To remedy the misunderstanding, the proposed amendment would remove the definition of “livery vessel” from §55.401, concerning Definitions, and amend §55.402, concerning Applicability and Exceptions, by adding a generic description in of the types of rental craft that are exempt from the provisions of the subchapter.

2. Fiscal Note.

3. Public Benefit/Cost Note.

Assistant Commander Jones also has determined that for each of the first five years that the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be clearer and more user friendly regulations regarding the licensing and titling of party boats.

There will be no adverse economic effect on persons required to comply with the rules.

(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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. 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.

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

(F) 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.

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, §31.176, which requires the commission to promulgate rules regarding the requirements and procedures for the issuance and renewal of a party boat operator license to protect the public health and safety and §31.180, which requires the commission to adopt and enforce rules necessary to implement Parks and Wildlife Code, Chapter 31, Subchapter G.

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

6. Rule Text.

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

[(1) Livery vessel — a vessel rented out for profit under a written contract by a vessel livery, as defined by Parks and Wildlife Code, §31.003(8), where all responsibility and liability for operating and provisioning the vessel is assumed by the party renting the vessel.]

(1)[(2)] Inland waters — all public waters of this state on the landward side of the coastal waters boundary as defined in §65.3(15) of this title (relating to Definitions).

(2)[(3)] Party boat — a vessel meeting the definition of "party boat" established in Parks and Wildlife Code, §31.171(2).

(3)[(4)] Passenger — a person carried on board a party boat, but does not include:

(A) — (C) (No change.)

§55.402. Applicability and Exceptions.

(a) – (c) (No change.)

(d) This subchapter does not apply to:

(1) – (2) (No change.)

(3) a vessel rented out for profit under a written contract by a vessel livery, as defined by Parks and Wildlife Code, §31.003(8), where all responsibility and liability for operating and provisioning the vessel is assumed by the party renting the vessel[a livery vessel]; or

(4) (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

LEGISLATIVE RULES REVIEW

CHAPTER 55. LAW ENFORCEMENT

MARINE SAFETY ENFORCEMENT – TRAINING AND CERTIFICATION STANDARDS

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §55.805 and amendments to §§55.802, 55.804, and 55.807, concerning Marine Safety Enforcement – Training and Certification Standards. The proposed amendments would eliminate requirements for the training of instructors from outside agencies, provide for online instruction for certification as a marine safety enforcement officer (MSEO), and modernize terminology. The department has steadily increased the availability, where possible, of online options for learning applications (for instance, boater education and hunter education requirements can now be satisfied online). Law Enforcement Division staff have determined that the Marine Safety Enforcement Officer Course can be offered online to better serve the department’s sister agencies as well as allow for more efficient resource allocation by the department. It is not uncommon for agency marine units to host MSEO course complements of only one or two officers, which consumes department resources and diverts personnel availability for other duties. Offering an online option could mitigate these situations. In another proposed rulemaking published elsewhere in this issue, the department proposes to establish a fee of $10 for online marine safety enforcement officer instruction.

Additionally, demand for the department’s MSEO instructor course is non-existent, primarily because MSEO training is conducted almost exclusively by department law enforcement personnel. Additionally, the Texas Commission on Law Enforcement (TCOLE) has implemented administrative processes that make recordkeeping and reporting functions problematic with respect to outside instructors. Therefore, the department proposes to cease offering the MSEO instructor training course, which necessitates the proposed repeal of §55.805, concerning Marine Safety Enforcement Officer Instructor Course Standards.

The proposed amendments would also update references to the Texas Commission on Law Enforcement Officer Standards, which is the former name of TCOLE.

The proposed repeal and amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

3. Public Benefit/Cost Note.

Assistant Commander Jones also has determined that for each of the first five years that the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be more efficient and less burdensome delivery of MSEO training and certification.

There will be no adverse economic effect on persons required to comply with the rule.

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

(F) 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.

(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation but will repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, §31.121, which requires the commission by rule to establish standards for training and certifying marine safety enforcement officers and instructors.

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

6. Rule Text.

§55.802. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, except where the context clearly indicates otherwise.

(1) Active duty peace officer — A peace officer holding a valid peace officer license from the Texas Commission on Law Enforcement (TCOLE)[Officer Standards and Education (TCLEOSE)] and a valid peace officer commission issued by an authorized governmental entity of the State of Texas.

(2) – (3) (No change.)

§55.803. General Rules.

(a) – (b) (No change.)

(1) (No change.)

(2) hold a TCOLE[TCLEOSE] Instructor license; and

(3) (No change.)

(d) A person who is a graduate of the TPWD Game Warden Academy and who is also an active commissioned game warden is eligible for certification as a marine safety enforcement officer. A person who is a graduate of the TPWD Game Warden Academy, who is also an active commissioned game warden, and who holds a TCOLE[TCLEOSE] Instructors License is eligible for certification as a marine safety enforcement officer course instructor.

§55.804. Marine Safety Enforcement Officer Course Standards.

(a) (No change.)

(b) The marine safety enforcement officer course is successfully completed when a peace officer has:

(1) attended the[a minimum of eight hours of] prescribed instruction by a department-certified marine safety enforcement officer instructor or department-approved online instruction provider[department certified marine safety enforcement officer instructor]; and

(2) (No change.)

(c) Upon completion of a course, the instructor or online provider shall submit appropriate course completion documentation to the department and TCOLE[a signed affidavit specifying for each student:]

[(1) the date(s) of instruction;]

[(2) the topics of instruction;]

[(3) the hours of instruction in each topic; and]

[(4) test score.]

§55.807. Fees. All applications shall be accompanied by the fees specified in Chapter 53 of this title (relating to Finance). For all courses other than online courses,[All] payments shall be in the form of a check, money order, or warrant made payable to the department. For courses provided by an online provider payment shall be in a form prescribed by the provider. All fees remitted to the department are nonrefundable; however, an entity may substitute a qualified peace officer in place of a person named on an application.

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 the authority of Parks and Wildlife Code, §31.121, which requires the commission by rule to establish standards for training and certifying marine safety enforcement officers and instructors.

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

§55.805. Marine Safety Enforcement Officer Instructor Course Standards.

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