Rule Review Chapter 55: Proposed Amendments to Boat Speed Limit and Buoy Rules

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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 §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.

        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 §31.142, 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

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