Commission Agenda Item 2
November 7, 2024
- Item Type: Action
- Presenter: Laura Carr
Rule Review – Recommended Adoption of Proposed Changes to Chapter 51
I. Executive Summary:
Staff seeks adoption of proposed rule amendments resulting from the first stage of the quadrennial review of Texas Parks and Wildlife Department (TPWD) regulations, as required by the Texas Administrative Procedure Act. The proposed rulemaking affects Title 31, Chapter 51 (Executive) of the Texas Administrative Code.
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 Following the review, rules must be re-adopted, adopted with changes, or repealed based upon the review.
The TPWD rule review process is broken into three groups of chapters within the Texas Administrative Code that contain TPWD’s regulations. The process for reviewing each chapter group occurs over three Texas Parks and Wildlife Commission (Commission) meetings. In the first meeting, staff notifies the Commission of its intent to begin the rule review process for a specific group of chapters. In the second meeting, staff seeks permission to publish any proposed rule changes or repeals resulting from the rule review in the Texas Register for public comment. In the third meeting, the staff seeks adoption of proposed rule changes and adoption of the completed rule review (i.e., re-adoption of the remaining unchanged rules).
TPWD published notice of its intent to review Chapters 51 (Executive), 52 (Stocking Policy), 55 (Law Enforcement), 60 (Maintenance Reviews), and 61 (Design & Construction) in the June 14, 2024, issue of the Texas Register (49 TexReg 4440). As a result of the rule review, staff determined that minor changes to Chapter 51 were necessary. At the Commission Work Session meeting on August 21, 2024, staff was authorized to publish the proposed changes in the Texas Register for public comment. The proposed changes appeared in the October 4, 2024, issue of the Texas Register (49 TexReg 8052). A summary of public comment on the proposed changes will be presented at the time of the meeting.
III. Recommendation:
Staff recommends that the Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts amendments to 31 Texas Administrative Code §51.61, concerning Enhanced Contract Monitoring; §51.168, concerning Nonprofit Partnerships to Promote Hunting and Fishing by Resident Veterans; and §51.301, concerning Duties of the Department, as listed in Exhibits A-C, with changes as necessary to the proposed text as published in the October 4, 2024, issue of the Texas Register (49 TexReg 8052).”
Attachments – 3
Exhibit A – Commission Agenda Item No. 2
LEGISLATIVE RULES REVIEW
CHAPTER 51. EXECUTIVE
SUBCHAPTER B – AUTHORITY TO CONTRACT
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department (TPWD) proposes an amendment to 31 TAC §51.61, concerning Enhanced Contract Monitoring. The proposed amendment would add a comprehensive provision to the list of factors in subsection (b) that the department considers when making a determination to implement enhanced contract monitoring measures.
Under Government Code, §2261.253(c), a state agency is required to establish by rule a procedure to identify each contract that requires enhanced contract or performance monitoring. The current rule lists multiple factors that TPWD will consider when determining whether a contract requires enhanced monitoring. The proposed amendment would add new paragraph (17) to provide for the consideration of any factors in addition to those enumerated in subsection (b) and is intended to provide the department with additional flexibility to consider other important factors, especially those recommended by the Comptroller of Public Accounts Statewide Procurement Division.
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.
Tammy Dunham, Director of Contracting, 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. Dunham 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 enhancement of the department’s ability to ensure that contracts and contractors are effectively monitored, which will ensure that the public trust is preserved.
There will be no adverse economic effect on persons required to comply with the rule, as the rule applies only to internal department administrative processes.
(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.
The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rule applies only to internal department administrative processes and not to any business or person. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(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 rule 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 rule.
(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 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 Tammy Dunham at (512) 389-4752, e-mail: tammy.dunham@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, §2261.253(c), which requires state agencies to establish by rule a procedure to identify each contract that requires enhanced contract or performance monitoring.
The proposed amendment affects Government Code, §2261.253.
6. Rule Text.
§51.61. Enhanced Contract Monitoring.
(a) (No change.)
(b) In determining if a contract requires enhanced contract monitoring, the department will consider the following factors, to the extent applicable:
(1) – (16) (No change.)
(17) Additional Factors. The department will consider additional factors that it determines appropriate, in accordance with Government Code, §2261.253(c).
(c) – (d) (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
Exhibit B – Commission Agenda Item No. 2
LEGISLATIVE RULES REVIEW
CHAPTER 51. EXECUTIVE
SUBCHAPTER G – NONPROFIT ORGANIZATIONS
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §51.168, concerning Nonprofit Partnerships to Promote Hunting and Fishing by Resident Veterans. The proposed amendment would replace an inaccurate acronym where necessary throughout the section. Under the provisions of §51.161, concerning Definitions, the acronym for “Nonprofit partner” in Subchapter G is “NP.” However, in §51.168, the acronym “NPP” is employed, which could cause confusion. The proposed amendment would rectify the inaccuracy.
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.
Robert Macdonald, Regulations Coordinator, 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. Macdonald 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 accurate department regulations.
There will be no adverse economic effect on persons required to comply with the rule, as the rule applies only to internal department administrative processes.
(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.
The department has determined that the proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rule applies only to internal department administrative processes and not to any business or person. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(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 rule 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 rule.
(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 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 Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The amendment is proposed under the authority of Parks and Wildlife Code, §11.208, which allows the commission to establish by rule the criteria under which the department may select a nonprofit partner and the guidelines under which a representative of or a veteran served by a nonprofit partner may engage in hunting or fishing activities provided by the nonprofit partner.
The proposed amendment affects Parks and Wildlife Code, Chapter 11.
6. Rule Text.
§51.168. Nonprofit Partnerships to Promote Hunting and Fishing by Resident Veterans.
(a) The department shall select one or more NP[nonprofit partners (NPP)] to promote hunting and fishing by residents of this state who are veterans of the United States Armed Forces. A prospective NP[NPP] under this section must exist exclusively to serve veterans of the United States Armed Forces. The selection process shall be conducted according to the applicable provisions of this subchapter, and shall occur at three-year intervals by means of a request for proposals published by the department.
(b) The following guidelines shall govern hunting and fishing activities under this section.
(1) An NP[NPP] must provide angling and hunting opportunities on private lands and/or public waters in Texas.
(2) (No change.)
(3) Hunting and fishing opportunity provided by an NP[NPP] under this section:
(A) (No change.)
(B) must be advertised by the NP[NPP] by providing public notice.
(4) Hunting and fishing opportunity provided by an NP[NPP] shall be at no cost to participants, not to include travel, lodging, meals, and other expenses ancillary to hunting and fishing activities unless those costs are provided by the NP[NPP] at the discretion of the NP[NPP].
(5) Not less than 30 days before any hunting or fishing activity may be provided or engaged in, an NP[NPP] shall complete and provide to the department on a form provided or approved by the department, the specific hunting and/or angling opportunities to be provided, to include the following, at a minimum:
(A) – (C) (No change.)
(D) the name and address of each representative of the NP[NPP] who will be participating in the activity.
(6) (No change.)
(7) The representative of an NP[NPP] who accompanies a participant who engages in hunting activities shall immediately tag any animal or bird killed by a participant for which a tag is required under Parks and Wildlife Code, Chapter 42 with a tag issued by the department to the NP[NPP] for the hunting opportunity.
(8) The representative of an NP[NPP] who accompanies a participant who engages in fishing activities shall immediately tag any fish caught by a participant for which a tag is required under Parks and Wildlife Code, Chapter 46 with a tag issued by the department to the NP[NPP] for the fishing opportunity.
(9) A wildlife resource document provided by the department to the NP[NPP] and completed by the representative of an NP[NPP] who accompanies a participant who engages in hunting or fishing activities shall accompany any harvested wildlife resource or portion thereof not accompanied by a tag until the wildlife resource reaches:
(A) – (C) (No change.)
(10) An NP[NPP] shall maintain a daily harvest log of hunting or fishing activity conducted.
(A) (No change.)
(B) The representative of an NP[NPP] who accompanies a participant who engages in hunting or fishing activities shall, on the same day that a wildlife resource is killed or caught, legibly enter the following information in the daily harvest log:
(i) the name of the NP[NPP] representative;
(ii) – (v) (No change.)
(C) (No change.)
(D) The daily harvest log shall be retained by an NP[NPP] for a period of two years following the latest entry of hunting or fishing activity required to be recorded in the log.
(11) An NP[NPP] shall complete and submit an annual report to the department on a form prescribed or approved by the department.
(c) A person acting as a representative of an NP[NPP] under this section is not exempt from any licensing, stamp, documentation, or other rule of the department while engaging in hunting or fishing activities under this section.
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
Exhibit C – Commission Agenda Item No. 2
LEGISLATIVE RULES REVIEW
CHAPTER 51. EXECUTIVE
SUBCHAPTER K – DISCLOSURE OF CUSTOMER INFORMATION
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §51.301, concerning Duties of the Department. The proposed amendment would eliminate subsection (a), which is no longer necessary.
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.
Robert Macdonald, Regulations Coordinator, 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. Macdonald 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 accurate department regulations.
There will be no adverse economic effect on persons required to comply with the rule, as the rule applies only to internal department administrative processes.
(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.
The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rule applies only to internal department administrative processes and not to any business or person. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(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 rule 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 rule.
(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 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 Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies relating to the release and use of customer information by rule.
The proposed amendment affects Parks and Wildlife Code, Chapter 11.
6. Rule Text.
§51.301. Duties of the Department.
(a) [The executive director shall prepare and make available a list of the types of information maintained by the department that are included in each of the applicable categories listed in §51.300 of this title (relating to Definitions).]
[(b)] The department will collect only that customer information and personal customer information required to carry out department functions.
(b)[(c)] The department will use customer information and personal customer information only as required to carry out department functions.
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