Presenter: Walt Dabney
Robert Sweeney

Commission Agenda Item No. 5
Action
Legislative Rule Review
January 2001

I. DISCUSSION: House Bill 1, 75th Legislature, Regular Session, 1997, Article IX, Sec. 167, directs each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule, provided the agency has not acted on the rule in the interim. The Act further requires that each agency readopting a rule certify that the reasons for the rule continue to exist. Due to the cyclical or annual nature of much of the department’s rulemaking activity, the legislative mandate is fulfilled on a continual basis (e.g., Statewide Hunting and Fishing Proclamation, Migratory Game Bird Proclamation, etc.). Other regulations, however, do fall under the purview of the Act.

The department in August of 1998 published in the Texas Register a Notice of Plan to Review, in which the agency outlined a proposed schedule for undertaking the required review. The department subsequently published a Notice of Intent to Review in the December 22, 2000, issue of the Texas Register (25 TexReg 12817), in which a suite of selected chapters of agency regulations were proposed for repeal, amendment, or readoption (Exhibits A, B, and C). The rule text of sections being amended appears within these exhibits. Regulations proposed for repeal are either redundant of existing state law or unnecessary, as noted. Regulations proposed for amendment reflect housekeeping-type changes or changes designed to increase their effectiveness or usefulness. Regulations proposed for readoption are retained on the basis of continuing need and the determination that the reasons for their existence continue to exist.

II. RECOMMENDATION: Staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts, with changes to the proposed text as published in the December 22, 2000, issue of the Texas Register (25 TexReg 12599-12626):

  1. Within 31 TAC Chapter 53 (Finance): amendments to §§53.1-53.10 within Subchapter A (License Fees and Boat and Motor Fees); amendments to §53.14 and 53.16 within Subchapter B (Stamps); amendments to §53.17 and §53.18 within Subchapter C (Authorized Vessel Registration Agent); the repeal of §53.23 and an amendment to §53.22 within Subchapter D (Surety Bond Requirements); the repeal of §§53.31-53.33 and an amendment to §53.35 within Subchapter E (Selling Price of Department Information); an amendment to §53.50 within Subchapter F (Texas Freshwater Fisheries Center Admission; Fees and Other Entrance Requirements); the repeal of §53.80 and an amendment to §53.70, 51.162 within Subchapter I (Miscellaneous Wildlife Licenses and Permits); and the readoption of all other sections within the chapter.
  2. Within 31 TAC Chapter 59 (Parks): amendments to §59.42 and §59.44 within Subchapter C (Acquisition and Development of Historic Sites, Buildings and Structures); amendments to §59.63 and §59.64 within Subchapter D (Administration of the State Park System); amendments to §§59.101 and 59.103-59.108 within Subchapter E (Operation and Leasing of Park Concessions); an amendment to §59.131 within Subchapter F (State Park Operational Rules); and the readoption of all other sections within the chapter.
  3. Within Chapter 69 (Resource Protection): amendments to §69.47 and §69.51 within Subchapter C (Wildlife Rehabilitation Permits); amendments to §69.91 and §69.93 within Subchapter G (Compliance With Coastal Management Plan); amendments to §69.120 and §69.121 within Subchapter H (Issuance of Marl, Sand and Gravel Permits); amendments to §69.201 and §69.203 within Subchapter I (Shell Dredging on the Texas Gulf Coast); amendments to §69.303 and §69.305 within Subchapter J (Scientific, Educational, and Zoological Permits); and the readoption of all other sections within the chapter.

Attachments - 4
1. Exhibit A - Chapter 53 Notice of Intent Proposed Amendments
2. Exhibit B - Chapter 59 Notice of Intent Proposed Amendments
3. Exhibit C - Chapter 69 Notice of Intent Proposed Amendments
4. Exhibit D - Fiscal Note (Available upon request)


Commission Agenda Item No. 5
Exhibit A

Notice of Intent to Review

The Texas Parks and Wildlife Department files this notice of intention to review Texas Administrative Code Title 31, Part II, as follows:

Chapter 53: Finance

Subchapter A: License Fees and Boat and Motor Fees

§53.1. License Issuance Procedures, Fees, Possession and Exemption Rules.

§53.2. Combination Hunting and Fishing Licenses, Packages, and Conservation Permits.

§53.3. Other Recreational Hunting and Fishing Licenses, Stamps, and Tags.

§53.4. Commercial Hunting/Trapping Licenses and Permits.

§53.5. Public Land Hunting Permits and Fees.

§53.6. Commercial Fishing Licenses and Tags.

§53.7. Business Licenses and Permits.

§53.8. Miscellaneous Wildlife Licenses and Permits.

§53.9. Investment of Lifetime License Endowment Fund.

§53.10. Vessel and Motor Fees Set by Commission.

NOTE: The contents of this subchapter are proposed for rule action elsewhere in this issue.

Subchapter B: Stamps

§53.11. Stamp Form.§53.12. Stamp Design.§53.13. Stamp Manner of Issuance.§53.14. Stamp Purchaser Identification and Possession Requirements.

§53.15. Stamp Exemptions.

§53.16. Obsolete Stamps and Decals.

NOTE: The contents of §53.14 and §53.16 are proposed for amendment elsewhere in this issue.

Subchapter C: Vessel Registration Agents and Surety Bonds

§53.17. Authorized Vessel Registration Agent for the Department.

§53.18. Surety Bond Requirements.

NOTE: The contents of this subchapter are proposed for amendment elsewhere in this issue.

Subchapter D: License Deputies

§53.22. License Deputy Appointment and Cancellation Procedures.

§53.23. Surety Bond Requirements.

§53.25. License Deputy Collection and Issuance Fees.NOTE: Section 53.23 is proposed for amendment and §53.22 is proposed for repeal elsewhere in this issue.

Subchapter E: Selling Price of Departmental Information

§53.31. Sales Price Establishment and Adjustment.§53.32. Magazine and Audio-Visual Products, Publications, and Services.§53.33. Fee Exempt Informational Materials.§53.35. Release and Sale of Customer Information.

NOTE: Sections 53.31-53.33 are proposed for repeal and §53.35 is proposed for amendment elsewhere in this issue.

Subchapter F: Commercial Fishing Boat Numbers

§53.41. Composition and Issuance.

Subchapter G: Texas Freshwater Fisheries Center Admission Fees

§53.50. Texas Freshwater Fisheries Center Admission; Fees and Other Entrance Requirements.

NOTE: Section 53.50 is proposed for amendment elsewhere in this issue.

Subchapter H. Marine Safety Enforcement - Training and Certification Fees

§53.60. Law Enforcement Training and Certification Fees.

Subchapter I. Protest Procedures for Vendors

§53.70. Vendor Protest Procedure.§53.80. Miscellaneous Wildlife Licenses and Permits.

NOTE: Section 53.70 is proposed for amendment and §53.80 is proposed for repeal elsewhere in this issue.

This review is pursuant to the Texas Government Code, §2001.039, and the General Appropriations Act of 1997, Article IX, §167, 75th Legislature, Regular Session.

The Commission will accept comments for 30 days following the publication of this notice in the Texas Register as to whether the reasons for adopting the sections under review continue to exist and to determine whether the rules reflect current legal, policy, and procedural considerations. Final consideration of this rules review is scheduled for the Parks and Wildlife Commission on January 25, 2001. Any questions or written comments pertaining to this notice of intention to review should be directed to Gene McCarty, Chief of Staff, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, TX , 78744. Any proposed changes to rules as a result of the review will be published in the Proposed Rules Section of the Texas Register and will be open for an additional 30-day public comment period prior to final adoption or repeal of the Commission.

LEGISLATIVE RULES REVIEW
CHAPTER 53, SUBCHAPTER A
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§53.1-53.10, concerning License Fees and Boat and Motor Fees. The amendment to §53.1, concerning License Issuance Procedures, Fees, Possession and Exemption Rules, License Year: clarifies where necessary that electronic license sales include sales by telephone; increases the range of the convenience fee charged to license buyers from $3.00 to $5.00; and clarifies that a Louisiana resident must possess a valid Louisiana recreational fishing license to qualify for reciprocal licensing privileges in Texas. The amendment is necessary to, respectively: eliminate confusion about whether license sales by telephone are electronic transactions; recover the administrative cost of operating an electronic point-of-sale system for the sale of licenses and permits; and eliminate a possible misconception that Louisiana residents are permitted to fish for free in Texas. The amendment to §53.2, concerning Combination Hunting and Fishing Licenses, Packages, and Conservation Permits, eliminates numerical designations of license types. The amendment is necessary because the agency's new electronic licensing system renders the license type numbers unnecessary. The amendment to §53.3, concerning Other Recreational Hunting and Fishing Licenses, Stamps, and Tags, clarifies the categories of persons who qualify to purchase a special resident hunting license, eliminates a reference to the fee waiver for resident hunting and fishing licenses for disabled veterans, furnishes a definitive qualification for eligibility to purchase a special resident fishing license, and eliminates numerical designations of license types. The amendment is necessary, respectively, to: accurately reflect the provisions of Parks and Wildlife Code, Chapter 42, with respect to persons eligible to purchase the special resident hunting license; eliminate a provision that is already a provision of Parks and Wildlife Code, Chapter 42; establish concrete definitions for specific requirements related to eligibility for the special resident fishing license; and eliminate license-type designations that are no longer necessary. The amendment to §53.4, concerning Commercial Hunting/Trapping Licenses and Permits, eliminates subsection (c) because it is an outdated duplication of subsection (d), and eliminates numerical designations of license types. The amendment is necessary to eliminate redundancy and because the agency's new electronic licensing system renders the license type numbers unnecessary. The amendment to §53.5, concerning Public Lands Hunting Permits and Fees, eliminates references to fees contained in other chapters and numerical designations of license types. The amendment is necessary to eliminate redundancy and because the agency's new electronic licensing system renders the license type numbers unnecessary. The amendment to §53.6, concerning Commercial Fishing Licenses and Tags, eliminates subsection (c)(1), implements a permit fee for the sale of non-game fish, and eliminates numerical designations of license types. The amendment is necessary, respectively, to eliminate an outdated fee schedule that should have been eliminated when the provisions of subsection (c)(2) were originally adopted; create a fee for permits to sell non-game fish as required by Parks and Wildlife Code, §67.0041; and to eliminate license-type numbers because the agency's new electronic licensing system renders the license type numbers unnecessary. The amendment to §53.7, concerning Business Licenses and Permits, creates permit fees for the bait-dealer-place of business/building license and license transfer and the bait dealer-place of business/motor vehicle license and license transfer, eliminates the fees for the shrimp house operator's license and license transfer, and eliminates numerical designations of license types. The amendment is necessary to, respectively, delete the shrimp house operator's license and license transfer, which were eliminated by the legislature; implement the fees for the bait-dealer-place of business/building license and license transfer and the bait dealer-place of business/motor vehicle license and license transfer, which are authorized by statute; and to eliminate license-type numbers because the agency's new electronic licensing system renders the license type numbers unnecessary. The amendment to §53.8, concerning Miscellaneous Wildlife Licenses and Permits, removes references to fees contained in other chapters, creates new subsections (f) and (g), and eliminates license-type numbers. The amendment is necessary, respectively, to: eliminate duplication; relocate the provisions of §53.80 to a more logical and appropriate area of the chapter; and eliminate license-type numbers because the agency's new electronic licensing system renders the license type numbers unnecessary. The amendment to 53.9, concerning Investment of Lifetime License Endowment Fund, authorizes the executive director to invest the Lifetime License Endowment Fund as directed by the commission. The amendment is necessary to provide greater latitude for investment opportunities. The amendment to §53.10, concerning Vessel and Motor Fees Set by Commission, eliminates the fee for state-assigned Hull Identification Numbers. The amendment is necessary because the agency no longer has statutory authority to impose the fee.

2. Fiscal Note. Judy Doran, staff attorney, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications to state government as a result of enforcing or administering the rule, and no fiscal implications to local governments.

3. Public Benefit - Cost Note. Ms. Doran has also determined that for each of the first five years the rules as proposed are in effect: (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the elimination of repetition of statutory law in the regulations of a state agency, elimination of redundancies within the rules themselves, the creation of permits and fees authorized by the legislature, clarification of confusing regulatory language, and elimination of obsolete and unnecessary regulations.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

4. Request for Public Comment. Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority. The amendments are proposed under Parks and Wildlife Code, §11.065, which authorizes the commission to adopt rules for the investment of the lifetime license endowment account; §12.702, which authorizes the commission to set by rule collection and issuance fees for a license, stamp, tag, permit, or other similar item issued under any chapter of the code; §41.006, which authorizes the commission to make regulations conforming to a reciprocal fishing license agreement with a border state; Chapter 42, which authorizes the commission to prescribe by rule the requirements relating to possessing a hunting license and to establish fees; §46.001, which authorizes the commission to prescribe by rule the requirements relating to possessing a fishing license; §46.004, which authorizes the commission to set fees for fishing licenses; Chapter 47, which authorizes the commission to establish rules governing the issuance, use, and fees for commercial fishing licenses; Chapter 50, which authorizes the commission to establish fees for combination licenses; and Chapter 67, which authorizes the commission to establish permits and fees for possession taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife;

The amendments affect Parks and Wildlife Code, Chapters 11, 12, 41, 42, 46, 47, 50, and 67.

§53.1. License Issuance Procedures, Fees, Possession and Exemption Rules.

(a) Hunting license possession.

(1) No person may hunt deer or turkey in this state without having a valid hunting license in immediate possession.

(2) No person may hunt species other than deer or turkey in this state without having a valid hunting license in immediate possession unless the person has acquired a license electronically (including by telephone)[by telephone] and has a valid authorization number in his possession. Authorization numbers shall only be valid for 20 days from date of purchase.

(b) Fishing license possession.

(1) No person may fish in this state without having a valid fishing license in immediate possession unless that person is exempt from holding a fishing license or has acquired a license electronically (including by telephone) [by telephone] and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from date of purchase.

(2) No person may catch and retain a red drum 28 inches or more in length in this state without having a valid fishing license and red drum tag in immediate possession.

(c) Issuance of licenses and stamps electronically (including by telephone) [by telephone].

(1) A person may acquire recreational hunting and/or fishing licenses electronically (including by telephone) [by telephone] from the department or its designated representatives by agreeing to pay a [$3.00] convenience fee of up to $5.00 per license in addition to the normal license fee.

(2) A person may acquire recreational hunting and/or fishing stamps electronically (including by telephone) [by telephone] from the department or its designated representatives by agreeing to pay a [$3.00] convenience fee of up to $5.00 per stamp order in addition to the normal stamp fee(s). This fee shall not be charged if a license is acquired during the same transaction.

(d) The following categories of persons are exempt from fishing license requirements and fees for the license years beginning September 1, 2000, and thereafter:

(1) residents under 17 years of age;

(2) non-residents under 17 years of age;

(3) non-residents 65 years of age or older who are residents of Louisiana and who possess a Louisiana recreational fishing license; (4) non-residents 64 years of age or older who are residents of Oklahoma;

(5) residents whose birth date is before September 1, 1930;

(6) persons who hold valid Louisiana non-resident fishing licenses while fishing on all waters inland from a line across Sabine Pass between Texas Point and Louisiana Point that form a common boundary between Texas and Louisiana if the State of Louisiana allows a reciprocal privilege to persons who hold valid Texas annual or temporary non-resident fishing licenses; and

(7) residents of Louisiana who meet the licensing requirements of their state while fishing on all waters inland from a line across Sabine Pass between Texas Point and Louisiana Point that form a common boundary between Texas and Louisiana if the State of Louisiana allows a reciprocal privilege to Texas residents who hold valid Texas fishing licenses.

(e) Effective September 1, 1996, and thereafter, an administrative fee of $1.00 shall be charged for replacement of lost or destroyed licenses, stamps, or permits. This fee shall not be charged for items which have a fee for duplicates otherwise prescribed by rule or statute.

§53[]2. Combination Hunting and Fishing Licenses, Packages, and Conservation Permits.

(a) Combination hunting and fishing licenses. The following license fee amounts are effective for the license year beginning September 1, 2000, and thereafter:

(1) resident combination hunting and fishing [(type 100)]-$32;

(2) duplicate combination hunting and fishing [(type 130)]-$6.00;

(3) lifetime resident combination hunting and fishing [(type 990)]-$1,000; and

(4) resident senior combination [(type )]-$10.

(b) Combination license packages. The following license fee amounts are effective for the license year beginning September 1, 2000, and thereafter:

(1) resident super combination hunting and fishing (package includes combination hunting and fishing license plus the privileges associated with the following stamps: turkey, white-winged dove, archery hunting, state waterfowl, muzzleloader hunting, saltwater sportfishing, and freshwater trout) [(type 111)]-$49;

(2) resident senior super combination hunting and fishing (package includes combination hunting and fishing license plus the privileges associated with the following stamps: turkey, white-winged dove, archery hunting, state waterfowl, muzzleloader hunting, saltwater sportfishing, and freshwater trout) [(type 114)]-$25; and

(3) all purpose resident combination hunting and fishing (package includes combination hunting and fishing license; the privileges associated with the following stamps: turkey, white-winged dove, archery hunting, state waterfowl, muzzleloader hunting, saltwater sportfishing, and freshwater trout; conservation permit; and annual state park entrance permit) [(type 500)]-$100.

(c) Conservation permits [(type 392)]. The fee amount effective for the permit year beginning September 1, 1996, and thereafter is $25.

§53.3. Other Recreational Hunting and Fishing licenses, Stamps, and Tags.

(a) Hunting licenses. The following license fee amounts are effective for the license year beginning September 1, 1996, and thereafter:

(1) resident hunting [(type 101)]—$19;

(2) lifetime resident hunting [(type 991)]—$600;

(3) special resident hunting [(type 102)]—$6.00. Residents under 17 years of age, residents who are 65 years old or older, and nonresident[Nonresident] hunters who are under 17 years of age on the date of license purchase are designated as residents and may purchase a special hunting license;

(4) duplicate hunting [(type 103)]—$6.00

(5) general nonresident hunting [(type 105)]—$250;

(6) nonresident special hunting [(type 107)]—$100;

(7) nonresident five-day special hunting [(type 157)]—$35;

(8) nonresident spring turkey hunting [(type 118)]—$100; and

(9) nonresident banded bird hunting [(type 120)]—$10.

[(b) Resident Hunting and Fishing Licenses for Disabled Veterans. License fees are waived effective with the license year beginning September 1, 1997 and thereafter.]

(b) [(c)] Hunting stamps. The following stamp fee amounts are effective for the stamp year beginning September 1, 1996; and thereafter:

(1) turkey [(type 119)]—$5.00;

(2) white-winged dove [(type 126)]—$7.00;

(3) archery hunting [(type 135)]—$7.00;

(4) waterfowl [(type 139)]—$7.00

(5) muzzleloader hunting [(type 187)]—$10.

(c) [(d)] Fishing licenses. The following license fee amounts are effective for the license year beginning September 1, 2000 and thereafter:

(1) resident fishing [(type 201)]—$19;

(2) lifetime resident fishing [(type 992)]—$600;

(3) special resident fishing [(type 203)]—$6.00 Eligibility requirements are as follows: residents who are blind as defined by Human Resources Code, §94.001, and residents who are 65 years of age or older and born on or after September 1, 1930; (4) temporary (14-day) resident sportfishing [(type 210)]—$12;

(5) temporary (three-day) resident sportfishing [(type 220)]—$10;

(6) nonresident fishing [(type 205)]—$30;

(7) temporary (five-day) nonresident fishing [(type 207)]—$20;

(8) fishing duplicate [(type 206)]—$6.00; and

(9) Lake Texoma fishing [(type 208)]—$7.50.

(d)[(e)] Fishing stamps. The following stamp fee amounts are effective for the license year beginning September 1, 2000, and thereafter:

(1) saltwater sportfishing [(type 211)]—$7.00;

(2) saltwater sportfishing stamp surcharge, to be effective until September 1, 2005—$3.00; and

(3) freshwater trout [(type 212)]—$7.00.

(e) [(f)] Fishing tags. The following tag fee amounts are effective for the license year beginning September 1, 2001, and thereafter:

(1) tarpon tag [(type 215)]—$100;

(2) duplicate tarpon tag [(type 230)]—$25; and

(3) individual bait-shrimp trawl tag [(type 334)]—$35;

(f) [(g)] Collector's edition stamp package.

(1) A collector's edition stamp package [(type 555)] shall consist of one each of the following stamps:

(A) turkey stamp;

(B) white-winged dove stamp;

(C) nongame stamp;

(D) archery stamp;

(E) state waterfowl stamp;

(F) muzzleloader hunting stamp;

(G) saltwater sportfishing stamp; and

(H) freshwater trout stamp.

(2) stamps in the package will not be valid for hunting or fishing.

(3) Fee for the package shall be $10 wholesale price and $20 retail price, effective September 1, 1996 and thereafter

§53.4. Commercial Hunting/Trapping Licenses and permits.

(a) Commercial hunting licenses and permits. The following license fee amounts are effective for the license year beginning September 1, 1996, and thereafter:

(1) hunting lease (less than 500 acres) [(type 132)]—$50;

(2) hunting lease (more than 500 acres and less than 1,000 acres) [(type 133)]—$100;

(3) hunting lease (1,000 acres or more) [(type 134)]—$200;

(4) private bird hunting area [(type 152)]—$60;

(5) field trial permit [(type 156)]—$50;

(6) hunting cooperative (less than 10,000 acres) [(types 182 and 185)]—$60 plus $5.00 per participating landowner;

(7) hunting cooperative (between 10,000 and 50,000 acres) [(types 183 and 185)]—$120 plus $5.00 per participating landowner;

(8) hunting cooperative (over 50,000 acres) [(types 184 and 185)]—$240 plus $5.00 per participating landowner;

(9) wildlife management association area hunting lease license (less than 10,000 acres) [(types 195 and 198)]—$30 plus $5.00 per participating landowner;

(10) wildlife management association area hunting lease license (between 10,000 and 50,000 acres) [(types 196 and 198)]—$60 plus $5.00 per participating landowner;

(11) wildlife management association area hunting lease license (over 50,000 acres) [(types 197 and 198)]—$120 plus $5.00 per participating landowner; and

(12) antlerless deer control permit application processing fee [(type 179)]—$300.

(b) Furbearing animal licenses and permits. The following license fee amounts are effective for the license year beginning September 1, 1996, and thereafter:

(1) resident trapper's [(type 106)]—$15;

(2) nonresident trapper's [(type 115)]—$250;

(3) resident retail fur buyer's [(type 108)]—$75;

(4) resident wholesale fur dealer's [(type 109)]—$150;

(5) furbearing animal propagation permit [(type 113)]—$75;

(6) nonresident retail fur buyer's [(type 140)]—$300; and

(7) nonresident wholesale fur dealer's [(type 141)]—$500

[(c) Alligator licenses, permits, stamps, and tags. The following fee amounts are effective for the license year beginning September 1, 1996, and thereafter:]

[(1) resident alligator hunter's [(type 142)]—$35;]

[(2) nonresident alligator hunter's [(type 143)]—$300;]

[(3) resident alligator buyer's license [(type 144)]—$200;]

[(4) nonresident alligator buyer's license [(type 145)]—$650;]

[(5) alligator import permit [(type 148)]—$25;]

[(6) alligator farmer permit [(type 149)]—$200;]

[(7) alligator nest stamp [(type 158)]—$50;]

[(8) wild caught alligator hide tag [(type 131)]—$10;]

[(9) farm raised alligator hide tag [(type 180)]—$4.00; and]

[(10) commercial wildlife management area alligator hide tag [(type 181)]—$120. ]

(d) Alligator licenses, permits, stamps, and tags. The following fee amounts are effective for the license year beginning September 1, 1997, and thereafter:

(1) resident alligator hunter's [(type 142)]—$35;

(2) nonresident alligator hunter's [(type 143)]—$300;

(3) resident retail alligator dealer's permit [(type 544)]—$100;

(4) nonresident retail alligator dealer's permit [(type 545)]—$400;

(5) resident wholesale alligator dealer's permit [(type 546)]—$200;

(6) nonresident wholesale alligator dealer's permit [(type 547)]— $800;

(7) alligator import permit [(type 148)]—$25;

(8) alligator farmer permit [(type 149)]—$200;

(9) alligator nest stamp [(type 158)]—$50;

(10) wild caught alligator hide tag [(type 131)]—$10;

(11) farm raised alligator hide tag [(type 180)]—$4.00; and

(12) commercial wildlife management area alligator hide tag [(type 181)]—$120.

§53.5. Public Lands Hunting permits and Fees.

(a) Hunting permits. The following permit fee amounts are effective for the permit year beginning September 1, 1996, and thereafter [(fees also prescribed in Chapter 65 of this title (relating to Wildlife)):]

(1) annual public hunting [(type 173)] —$40;

(2) duplicate annual public hunting [(type 174)] —$10;

(3) limited public use [(type 175)] —$10; and

(4) duplicate limited public use [(type 176)]—$5.00.

(b) Special and regular permits. The following permit fee amounts are effective for the permit year beginning September 1, 1996, and thereafter [(fees also prescribed in Chapter 65 of this title):]

(1) deer, exotic mammal, pronghorn antelope, javelina, turkey, coyote, alligator—$50;

(2) deer, exotic mammal, alligator-extended period—$100;

(3) squirrel, game birds (other than turkey), rabbits and hares—$10;

(4) special package hunts, desert bighorn sheep—no charge.

(c) Application fee [(fees also prescribed in Chapter 65 of this title)]. The non-refundable application fee for individuals applying for computer-selected participant hunting opportunities is $2.00 per applicant for participation in the general drawings and $10 per applicant for participation in the special package hunts (except no charge for applicants under 17 years of age) effective September 1, 1996, and thereafter.

(d) Competitive hunting dog field trial permit fees [(fees also prescribed in Chapter 65 of this title)] effective September 1, 1996, and thereafter are as follows:

(1) 10 or less participants—$100 per day;

(2) 11-25 participants—$200 per day;

(3) 26-50 participants—$300 per day;

(4) 51-75 participants—$400 per day; and

(5) 76 or more participants—$500 per day.

§53.6. Commercial Fishing Licenses and Tags.

(a) Shrimping licenses: The following license fee amounts are effective for the license year beginning September 1, 2001, and thereafter:

(1) Licenses:

(A) resident commercial gulf shrimp boat [(type 330)]—$375;

(B) resident commercial bay shrimp boat [(type 336)] —$290;

(C) resident commercial bait-shrimp boat [(type 337)]—$290;

(D) resident commercial shrimp boat captain's [(type 333)]—$25;

(E) nonresident commercial gulf shrimp boat [(type 430)] —$1,125;

(F) nonresident commercial bay shrimp boat [(type 436)]—$625;

(G) nonresident commercial bait-shrimp boat [(type 437)]—$625; and

(H) nonresident commercial shrimp boat captain's [(type 433)] —$100.

(2) License transfers:

(A) resident commercial gulf shrimp boat license transfer [(type 383)] —$5.00;

(B) resident commercial bay shrimp boat license transfer [(type 366)]—$290;

(C) resident commercial bait-shrimp boat license transfer [(type 367)]—$290;

(D) nonresident commercial gulf shrimp boat license transfer [(type 483)] —$5.00;

(E) nonresident commercial bay shrimp boat license transfer [(type 466)]—$290; and

(F) nonresident commercial bait-shrimp boat license transfer [(type 467)]—$290.

(3) Duplicate License plates:

(A) resident commercial gulf shrimp boat [(type 390)] —$5.00;

(B) resident commercial bay shrimp boat [(type 396)]—$5.00;

(C) resident commercial bait-shrimp boat [(type 397)]—$5.00;

(D) nonresident commercial gulf shrimp boat [(type 490)]—$5.00;

(E) nonresident commercial bay shrimp boat [(type 496)]—$5.00; and

(F) nonresident commercial bait-shrimp boat [(type 497)]—$5.00.

(b) Oystering licenses. The following license fee amounts are effective for the license year beginning September 1, 1996, and thereafter.

(1) Licenses:

(A) resident commercial oyster boat [(type 306)]—$350;

(B) resident sport oyster boat [(type 328)]—$10;

(C) resident commercial oyster captain's [(type 309)]—$25;

(D) resident commercial oyster fisherman's [(type 370)]—$100;

(E) nonresident commercial oyster boat [(type 406)]—$1,400;

(F) nonresident sport oyster boat [(type 428)]—$10;

(G) nonresident commercial oyster boat captain's [(type 409)]—$100; and

(H) nonresident commercial oyster fisherman's [(type 470)]—$250.

(2) License transfers:

(A) resident commercial oyster boat transfer [(type 386)]—$5.00; and

(B) nonresident commercial oyster boat transfer [(type 486)]—$5.00.

(3) Duplicate License plates:

(A) resident commercial oyster boat [(type 395)] —$5.00; and

(B) nonresident commercial oyster boat [(type 495)] —$5.00.

(c) General, finfish, menhaden, mussel, clam, and miscellaneous licenses.

(1) [Licenses. The following license fee amounts are effective for the license year beginning September 1, 1996:]

[(A) resident commercial fishing boat (type 304)—$15;

[(B) commercial fishing boat (menhaden only) (type 325)—$3,500;]

[(C) resident general commercial fisherman's (type 372)—$20;]

[(D) resident commercial mussel and clam fisherman's (type 320)—$30;]

[(E) resident shell buyer's (type 324)—$100;]

[(F) nonresident commercial fishing boat (type 404)—$60;]

[(G) nonresident general commercial fisherman's (type 340)—$150;]

[(H) nonresident commercial mussel and clam fisherman's (type 420)—$800; and]

[(I) nonresident shell buyer's (type 424)—$1,500.]

[(2)] Licenses and permits. The following license fee amounts are effective for the license year beginning September 1, 1997, and thereafter:

(A) resident commercial fishing boat [(type 304)]—$15;

(B) class A menhaden boat [(type 325)] —$3,500;

(C) class B menhaden boat [(type 329)] —$50;

(D) resident general commercial fisherman's [(type 372)] —$20;

(E) resident commercial mussel and clam fisherman's [(type 320)] —$30;

(F) resident shell buyer's [(type 324)] —$100;

(G) nonresident commercial fishing boat [(type 404)] —$60;

(H) nonresident general commercial fisherman's [(type 340)]—$150;

(I) nonresident commercial mussel and clam fisherman's [(type 420)]—$800;

(J) nonresident shell buyer's [(type 424)]—$1,500;

(K) menhaden fish plant permit [(type 326)]—$150; [and]

(L) mussel dredge fee [(type 323)]—$30; and

(M) permit to sell non-game fish—$50.

(3) License transfers. The following license transfer fee amounts are effective for the license year beginning September 1, 1996, and thereafter:

(A) resident commercial fishing boat license transfer [(type 384)]—$5.00; and

(B) nonresident commercial fishing boat license transfer [(type 484)] —$5.00.

(4) Duplicate license plates. The following duplicate license plate fee amounts are effective for the license year beginning September 1, 1996, and thereafter:

(A) resident commercial fishing boat [(type 394)] —$5.00; and

(B) nonresident commercial fishing boat [(type 494)] —$5.00.

(d) Crabbing licenses.

(1) Licenses and permits. The following license fee amounts are effective for the license year beginning September 1, 1998, and thereafter:

(A) resident commercial crab fisherman's [(type 338)] —$500; and

(B) nonresident commercial crab fisherman's [(type 438)]—$2,000.

(2) License transfers. The following license transfer fee amounts are effective for the license year beginning September 1, 1998, and thereafter:

(A) resident commercial crab fisherman's [(type 368)]—$500; and

(B) nonresident commercial crab fisherman's [(type 468)] —$2,000.

(3) Duplicate license plates. The following duplicate license plate fee amounts are effective for the license year beginning September 1, 1998, and thereafter:

(A) resident commercial crab fisherman's [(type 338)]—$5.00; and

(B) nonresident commercial crab fisherman's [(type 438)]—$5.00.

(e) Finfishing licenses.

(1) Licenses and permits. The following license fee amounts are effective for the license year beginning September 1, 2000, and thereafter:

(A) resident commercial finfish fisherman's [(type 371)]—$300; and

(B) nonresident commercial finfish fisherman's [(type 361)] —$1,200.

(2) License transfers. The following license transfer fee amounts are effective for the license year beginning September 1, 2000, and thereafter:

(A) resident commercial finfish fisherman's [(type 472)]—$300; and

(B) nonresident commercial finfish fisherman's [(type 482)] —$1,200.

(3) Duplicate license plates. The following duplicate license plate fee amounts are effective for the license year beginning September 1, 2000, and thereafter:

(A) resident commercial finfish fisherman's [(type 471)] —$5.00; and

(B) nonresident commercial finfish fisherman's [(type 481)]—$5.00.

§53.7. Business Licenses and Permits. Fish, bait, and shrimp licenses and tags.

(1) Licenses. The following license fee amounts are effective for the license year beginning September 1, 2001 , and thereafter:

(A) retail fish dealer's [(type 302)]—$70;

(B) retail fish dealer's truck [(type 316)]—$130;

(C) wholesale fish dealer's [(type 314)]—$625;

(D) wholesale fish dealer's truck [(type 315)]—$425;

(E) bait dealer's,atb>- individual [(type 312)]—$30

(F) bait dealer-place of business/building—$30 [shrimp house operator's (type 332)—$425];

(G) bait dealer-place of business/motor vehicle—$30;

(H)[(G)] bait shrimp dealer's [(type 335)]—$170; (I)[(H)] finfish import [(type 380)]—$75; and (J)[(I)] fishing guide [(type 310)]—$75.

(2) License transfers. The following license fee amounts are effective for the license year beginning September 1, 1995, and thereafter:

(A) retail fish dealer's license transfer [(type 382)]—$5.00; (B) retail fish dealer's truck license transfer [(type 388)]—$5.00;

(C) wholesale fish dealer's license transfer [(type 382)]—$5.00;

(D) wholesale fish dealer's truck license transfer [(type 388)]—$5.00;

(E) bait dealer's license transfer [(type 387)]—$5.00;

(F) bait dealer's-place of business/building license transfer—$5.00[shrimp house operator's license transfer (type 389)—$5.00];

(G) bait dealer's-place of business/motor vehicle license transfer—$5.00;

(H)[(G)] bait shrimp dealer's license transfer [(type 385)]—$5.00; (I)[(H)] finfish import license transfer [(type 381)]—$5.00.

(3) The fee for the saltwater trotline tag [(type 307)] shall be $3.00. §53.8. Miscellaneous Wildlife Licenses and Permits. (a) Deer breeding and related permits. The following permit application processing fee amounts are effective beginning December 1, 1995, and thereafter. [Permit application processing fees (fees also prescribed in Chapter 65 of this title (relating to Wildlife)):] (1) scientific breeder's [(type 112)]—$150;

(2) deer purchase [(type 170)]—$25; and

(3) deer transport [(type 171)]—$25.

(b) Game bird and animal breeding licenses. The following fee amounts are effective for the license year beginning September 1, 1996, and thereafter:

(1) game breeder's [(type 110)]—$15;

(2) class 1 commercial game bird breeder's [(type 116)]—$150; and

(3) class 2 commercial game bird breeder's [(type 127)]—$15.

(c) Falconry permits. The following permit fee amounts [(fees also prescribed in Chapter 65 of this title)] are effective for the license year beginning September 1, 1996, and thereafter:

(1) apprentice falconer's [(type 121)]—$50;

(2) general falconer's [(type 122)]—$100;

(3) master falconer's [(type 123)]—$150;

(4) falconer's renewal [(type 124)]-$50; and

(5) nonresident raptor trapper's [(type 125)]-$300.

(d) Trap, transport and transplant permit. The following fees [(also prescribed in Chapter 65 of this title)] are effective December 1, 1995, and thereafter:

(1) nonrefundable application processing fee—$150; and

(2) nonrefundable application processing fee for amendment to existing permit—$25.

(e) Urban white-tailed deer removal permit. The following fees [(also prescribed in Chapter 65 of this title)] are effective December 1, 1995, and thereafter:

(1) nonrefundable application processing fee—$150; and

(2) nonrefundable application processing fee for amendment to existing permit—$25.

(f) Deer management permit. The following permit application processing fee amounts are effective beginning September 1, 1998, and thereafter:

(1) application for deer management permit—$1,000; and (2) renewal of deer management permit—$500.

(g) Commercial nongame permits. The following permit fee amounts are effective for the license year beginning September 1, 1998, and thereafter: (1) Resident Nongame Commercial Collector Permit —$15; (2) Nonresident Nongame Commercial Collector Permit —$50; (3) Resident Nongame Commercial Dealer Permit —$50; and (4) Nonresident Nongame Commercial Dealer Permit —$200.

§53.9. Investment of Lifetime License Endowment Fund. The Executive Director is authorized to invest the Lifetime License Endowment Fund in accordance with the investment policy approved by the commission [United States Treasury bills and bonds or certificates of deposit at the best available yields when sufficient funds have been received to warrant investment]. §53.10. Vessel and Motor Fees Set by Commission. The following vessel and motor fee amounts are effective March 1, 1996, and thereafter:

(1) expedited "quick" title to a vessel—$25;

(2) expedited "quick" title to a motor—$25;

(3) livery vessel—$15;

(4) vessel-Class A—$25;

(5) vessel-Class 1—$40;

(6) vessel-Class 2—$55;

(7) vessel-Class 3—$70;

(8) vessel-transfer of ownership—$5.00;

(9) vessel-duplicate certificate of number—$5.00;

(10) vessel-duplicate decals—$5.00;

[(11)vessel-state assigned HIN—$5.00];

(11) [(12)] marine dealer/manufacturer number—$130; and

(12) [(13)] certificate of title—$15.

LEGISLATIVE RULES REVIEW
CHAPTER 53, SUBCHAPTER B
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §53.14, concerning Stamp Purchaser Identification and Possession Requirements, and §53.16, concerning Obsolete Stamps and Decals. The amendment to §53.14 offers a clarification that stamp requirements apply to electronic sales. The amendment is necessary to make clear that requirements concerning license and stamp sales by telephone also apply to transactions made electronically. The amendment to §53.16, concerning Obsolete Stamps and Decals, would allow obsolete nongame and endangered species stamps to be sold under the current provisions for all other stamps and decals. The amendment is necessary to allow the public the opportunity to purchase obsolete stamps for collecting and memorabilia purposes.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the rules as proposed is in effect, there will be minimal fiscal implications to state government as a result of the proposed rules, in the form of revenue generated from the sale of obsolete nongame and endangered species stamps, which is expected to be less than $1,000 per fiscal year. There will be no fiscal impacts for local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the elimination of confusion regarding the status of license sales transacted by telephone/electronically, and the availability of obsolete nongame and endangered species stamps for collectors and enthusiasts.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §11.055, which requires the commission to provide for the widespread availability of art prints, decals, and stamps, §11.056, which authorizes the commission to establish fees for art decals and stamps, and §12.703, which authorizes the department to issue a license, stamp, tag, permit, or another similar item authorized by the code through the use of automated equipment and a point-of-sale system.

The amendment affects Parks and Wildlife Code, Chapters 11 and 12.

§53.14. Stamp Purchase Identification and Possession Requirements.

(a) A person may hunt without a required state hunting stamp in immediate possession if the person has acquired a stamp electronically (including by telephone)[by telephone] and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.

(b) A person may fish without a required fishing stamp in immediate possession if the person has acquired a stamp electronically (including by telephone)[by telephone] and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.

(c) A state hunting or fishing stamp issued in an automated manner to a person using the stamp is valid for hunting or fishing purposes without the user's signature on its face.

§53.16. Obsolete Stamps and Decals.

(a) Obsolete[Except for Nongame and Endangered Species Stamps, obsolete] stamps and decals shall be sold for informational purposes at face value, plus a processing charge sufficient to recover shipment, postage, and sales tax.

(b) Stamps[Except for Nongame and Endangered Species stamps, stamps] and decals shall remain on sale for a maximum of one fiscal year after expiration. During the second year, obsolete stamps and decals[, other than the Nongame and Endangered Species stamp, ]shall be sold only by book [or sheet].

(c) Previous issues of Nongame and Endangered Species stamps may be made available for sale at $10 for individual stamps or decals, and $75 or less for a complete set of the 11 stamps issued from 1985 through 1995. The Department may sell a limited number of collector's sets of the 11 stamps issued from 1985 through 1995, framed and mounted, for $300 or less per set. The Department may add to this price a processing charge sufficient to recover shipment, postage, and sales tax. The Department may give away earlier issues of decals and use previously issued stamps in merchandise items that are offered for sale or as promotional items.

(d) Nongame and Endangered Species stamps issued during and after 1996 are one of eight stamps issued as collectors series set and are subject to the same rules as other obsolete stamps.

(e) [(d)] The executive director may maintain a limited number of stamps and decals of each type and year.

(f) [(e)] All other obsolete stamps and decals shall be destroyed.

This agency hereby certifies that the rule as proposed 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 53, SUBCHAPTER C
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §53.17, concerning Authorized Vessel Registration Agent for the Department, and §53.18, concerning Surety Bond Requirements. The amendment to §53.17 would eliminate the option of the use of a letter of credit to qualify as an authorized agent of the department for the purpose of registering vessels. The amendment is necessary because the department has determined that it does not have statutory authority to offer or require the option. The amendment to §53.18 removes the option of providing a letter of credit in lieu of a surety bond for person desiring to be approved as vessel registration agents. The amendment is necessary because the department has determined that it does not have statutory authority to offer or require the option.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be regulations consistent with statutory authority.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §31.006, which authorizes the department to authorize a dealer who holds a dealer's or manufacturer's number to act as the agent of the department under Chapter 31, Subchapter B and under Tax Code, Chapter 160, for the issuance of certificates of number and the collection of fees and taxes for boats sold by that dealer.

The amendment affects Parks and Wildlife Code, Chapter 31.

§53.17. Authorized Vessel Registration Agent for the Department.

(a) A person is appointed as an authorized agent for the department when forms, prescribed by the executive director, have been properly executed and received by the Texas Parks and Wildlife Department. Such forms may include, but are not limited to, the following:

(1) agent application;

(2) public official bond [or letter of credit];

(3) agent agreement.

(b) These forms may be inspected at the Texas Parks and Wildlife Department Headquarters Complex, 4200 Smith School Road, Austin, Texas 78744.

§53.18. Surety Bond Requirements. A public official (surety) bond [or letter of credit] is required of all persons approved as authorized vessel registration agents with the exception of departmental employees and county tax assessor-collectors. The public official (surety) bond must be executed by a bonding company licensed by the Texas Department of Insurance. The minimal penal sum and terms of the agent bond [or letter of credit] shall be prescribed by the executive director.

This agency hereby certifies that the rule as proposed 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 53, SUBCHAPTER D
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §53.23, concerning Surety Bond Requirements, and an amendment to §53.22, concerning License Deputy Appointment and Cancellation Procedures. The repeal of §53.23 eliminates unnecessary provisions and is necessary because under the department's new licensing system, surety bonds will no longer be required for license deputies. The amendment to §53.22 would provide for an approval process for license deputy applications and would eliminate the requirement for applicants to provide a surety bond or letter of credit.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the repeal and amendment as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the repeal and amendment as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the elimination of unnecessary regulations and a more efficient method of selecting license deputies to serve the public.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The repeal and amendment are proposed under Parks and Wildlife Code, Chapter 12, which authorizes persons designated by or contracted with by the department to issue and collect money received for a license, stamp, permit, tag, or other similar item is a license deputy and may issue and collect money for a license, stamp, permit, tag, or other similar item issued under the code.

The proposed amendment affect Parks and Wildlife Code, Chapter 12.

§53.22. License Deputy Appointment and Cancellation Procedure.

(a) A person is appointed as a license deputy when forms, prescribed by the executive director, have been properly executed, received and approved[and received] by the Texas Parks and Wildlife Department. Such forms may include, but are not limited to, the following:

(1) license deputy application;

(2) [public official bond or letter of credit; ]

[(3)] license deputy agreement.

(b) The Texas Parks and Wildlife Department may cancel the authority of a license deputy to issue licenses if the person fails to comply with the terms set forth in the agreement with the department.

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

Issued in Austin, Texas, on

The repeal is proposed under Parks and Wildlife Code, Chapter 12, which authorizes persons designated by or contracted with by the department to issue and collect money received for a license, stamp, permit, tag, or other similar item is a license deputy and may issue and collect money for a license, stamp, permit, tag, or other similar item issued under the code.

The proposed repeal affects Parks and Wildlife Code, Chapter 12.

§53.23. Surety Bond Requirements.

This agency hereby certifies that the rule as proposed 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 59, SUBCHAPTER E

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§59.101 and 59.103-59.108, concerning Operation and Leasing of Park Concessions. The amendment to §59.101, concerning Definitions, alters the definition of 'prospectus' to make the definition more accurate, and adds a new definition for 'Partnership Concessions.' The amendment is necessary to clarify that the prospectus is required only for leased concession, and to define a special class of concessionaire. The amendment to §59.103, concerning Selection of a Concessioner, alters subsection (a) to make better grammatical sense and remove a reference to renewal, and alters subsection (c) to remove a reference to renewal and to add new language creating a policy for reviewing applications and selecting a concessioner. The amendment is necessary because the department is implementing a process of reapplication in lieu of renewal, and because a policy for evaluation and recommendation is prudent. The amendment to §59.104, concerning Types of Concession Contracts, alters subsection (a) to require long-term contracts for major concessions, and alters subsection (b) to provide the department with the option of issuing a prospectus for short-term contracts at the agency's discretion. The amendment is necessary to provide reasonable security to prospective concessioners facing major investments as a consequence of selection, and to allow the department to conduct a more thorough evaluation of minor contracts as the situation dictates. The amendment to §59.105, concerning Contract Terms, alters subsection (a) to require the department to provide a sufficient duration of a standard contract to permit a reasonable opportunity for a concessioner to realize a return on investment, and alters subsection (b) to require revocable short-term contracts to be two years, rather than one year, in duration. The amendment is necessary to provide security to prospective concessioners, and thereby encourage applications. The amendment to §59.106, concerning Franchise Fee Rates and Charges, provides a mechanism for assessing penalties for delinquent payments to the department under the terms of a contract, and provides for a waiver of such penalties for good cause. The amendment is necessary to ensure that the department receives franchise fees and to prevent financial disruptions caused by non-payment of franchise fees. The amendment to §59.107, concerning Accounting, makes non-substantive grammatical change to improve the sense of the section. The amendment is necessary to make the provisions of the sections as clearly understandable as possible. The amendment to §59.108, concerning Bond and Insurance, would require a payment from concessioners whose contracts require the construction of public accommodations. The amendment is necessary to ensure completion of projects in the event that the concessioner is unable to fulfill the terms of a contract.

2. Fiscal Note.

Mike Crevier, budget officer, has determined that for each of the first five years that the rules as proposed are in effect, there will be no negative fiscal implications to the department and no fiscal implications to other units of state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Mr. Crevier has also determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be a more efficient and effective process of selecting concessioners, an improved mechanism for protecting the department and the public it serves from financial disruptions caused by delinquent fees, and, as a result of greater security for concessioners, improved quality of concessions and services at state parks.

(B) There is a potential minimal effect on small businesses, microbusinesses, and persons required to comply with the rules as proposed; however, the cost of compliance will be offset by the increased contractual security provided to selected concessioners. There will be no effect on small businesses, microbusinesses, and persons required to comply with the rules as proposed unless selection occurs.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on specific local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Joan Blankenbeker, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4909 or 1-800-792-1112 extension 4909 (e-mail: joan.blankenbeker@tpwd.state.tx.us).

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §13.015, which authorizes the department to grant contracts to operate concessions in state parks or on causeways, beach drives, or other improvements in connection with state park sites, and to make regulations governing the granting or operating of concessions.

The amendments affect Parks and Wildlife Code, Chapter 13.

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

(1) Concessioner—Any person, partnership, or corporation granted concession rights or privileges.

(2) Concessions—Those services and accommodations offered to the public in state parks for which charges, fees, admissions, or similar assessments are collected, excluding park entrance fees.

(3) Franchise fee—The annual fee or percentage of gross receipts a concessioner pays to the state for park concession rights or privileges.

(4) Leased concessions—Rights or privileges granted by the department to any individual, partnership, or corporation to provide visitor services and accommodations for profit within the boundaries of a state park.

(5) Prospectus—A public statement issued by the department giving information on the availability of a leased [park] concession as to location, visitor services and accommodations to be provided, capital and operating investment needed, business experience or other knowledge required, and the procedure to follow in submitting a concession proposal.

(6) State-operated concessions—Visitor services and accommodations operated by park personnel.

(7) Partnership Concessions – Visitor services and accommodations operated by a non-profit park volunteer support group.

§59.103. Selection of a Concessioner.

(a) When it is determined by the executive director that the leasing of a park [a leased] concession is necessary, desirable, and financially feasible for furnishing visitor services and accommodations in a park area, or when it is necessary to secure a new concessioner [or grant a contract renewal] for a leased concession, a prospectus announcing the availability of such concession shall be issued to all interested persons, detailing essential information about the concession, and the procedure to follow in submitting a proposal. The executive director or his designee shall fully publicize the availability of a concession in the immediate area of the park and on a state or national level when circumstances warrant a broader coverage.

(b) A concessioner will be selected with great care to insure that he has ability to operate the concession in an entirely satisfactory manner. In addition to ample financing and ability to conduct the concession in an economical manner, the concessioner should conduct his operation in accordance with the ideals and objectives of the department by adhering to business practices that emphasize public service in addition to a profit motive, and are consistent to the highest practical degree with the preservation and conservation of the area. The department may disregard any or all proposals submitted, or make any counter proposal it may consider reasonable or desirable in accordance with commission policy.

(c) The granting, [renewal,] termination, amendment, transfer, assignment, and enforcement or all concession contract requirements and provisions of such contracts is delegated to the executive director. Program staff will conduct a comprehensive review of all information contained within the submitted proposal. Following review, the agency will conduct personal interviews of each submitter for the purpose of recommending a candidate as the prospective concessionaire. The agency, at its discretion, may empanel a review board consisting of agency staff, and the local community, industry experts, or other individuals relevant or pertinent to the selection.

(d) The executive director may terminate a contract upon finding that a material breach of the contract has occurred.

§59.104.

(a) A standard form [long-term] contract shall be used to grant major concession rights and privileges when the concessioner is required to make sizable investments in merchandise inventories, furnishings or equipment, and maintenance or repair of state-owned buildings and structures.

(b) A revocable short-term contract shall be used to grant minor concession privileges when the scope and size of the concession warrants it. Examples include merchandise vending machines, miscellaneous coin-operated machines, recreational rental equipment, and other miscellaneous services or accommodations the public has a right to expect and the executive director deems appropriate. A prospectus announcing the availability of this type of concession may [will] not be issued.

(c) A revocable temporary contract may be used when deemed necessary that immediate action be taken to continue services or provide interim services.

§59.105. Contract Terms.

(a) The standard form contract shall be executed for a term of years commensurate with the size of the total investment required of the concessioner. The duration of a contract shall be set for a period of time to allow for a reasonable opportunity for return on investment.

(b) Revocable short-term contracts shall be issued for a term of two years[one year] or less.

(c) Revocable temporary contracts shall be issued for a term of six months or less.

(d) No renewal rights shall be made a part of any concession contract.

§59.106. Franchise Fee Rates and Charges.

(a) Franchise fee rates shall be determined by the executive director or his designee in an equitable and fair manner, giving consideration to the various types of operations, gross receipts, net profit, and capital invested. Single or multiple percentages applied to all or various kinds of gross receipts will be considered in new or amended contracts.

(b) A penalty of 5.0% of the franchise fee due shall be imposed on a leased concessionaire who fails to pay the fee as required under the signed contractual agreement, and if that person fails to pay the fee within 30 days after the day when the fee is sue, an additional 5/0% penalty shall be imposed.

(c) Delinquent fees accrue interest beginning on the 61st day after their due date.

(d) The yearly interest on all delinquent franchise fees is the prime rate plus one per cent, as published in the Wall Street Journal on the first day of the calendar year that is not a Saturday, Sunday or a legal holiday.

(e) The penalties and interest assessed for delinquent franchise fees may not exceed the penalties and interest rate established in the Texas Tax Code §111.060 and §111.061.

(f) Penalties and/or interest under this section may be waived by the executive director for a good cause.

(g)[(b)] The right to reconsider and renegotiate franchise fees of concession contracts on an annual basis shall be considered standard practice when conditions warrant an adjustment.

(h)[(c)] The rates and charges prescribed by the concessioner shall be subject to the approval of the executive director or his designee. The reasonableness of the concessioner's rates and charges to the public shall be judged primarily by comparing with current charges for facilities and services of comparable character under similar conditions. Consideration shall be given to:

(1) length of season;

(2) provisions for peakloads;

(3) average percentage of occupancy;

(4) accessibility;

(5) availability and costs of labor and materials;

(6) type of patronage; and

(7) other factors deemed significant as related to the type of concession.

§59.107. Accounting.

(a) The concessioner shall submit reports and keep such records in such a manner as the executive director may prescribe to enable the department to determine that all terms and conditions of the concession contract have been and are being faithfully performed.

(b) The state auditor, or duly authorized representative of the department, shall, for the purpose of audit and examination, have access to records and other books, documents, and papers of the concessioner pertinent to the contract.

§59.108. Bond and Insurance.

(a) The executive director may require the concessioner to furnish a bond conditioned upon the faithful performance of his contract. When the contract award involves construction of public accommodations, the concessionaire will be required to obtain a payment bond.

(b) The concessioner shall carry such insurance against losses by fire, public liability, employee liability, and other hazards as is customary among prudent operators of similar businesses under comparable circumstances, and in amounts satisfactory to the department. The minimum limit for public liability shall be $300,000. The executive director has the authority to increase this limitation when conditions warrant such action.

This agency hereby certifies that the rule as proposed 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 53, SUBCHAPTER E
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §§53.31-53.33, and an amendment to §53.35, concerning Selling Price of Department Information. The repeal of §§53.31-53.33 eliminates unnecessary regulations that recapitulate provisions of the Parks and Wildlife Code. The amendment to §53.35 stipulates that a designee may act on behalf of the executive director for the purposes of the section, clarifies that information acquired from the department and published on the Internet by a third party will be removed, and clarifies that information supplied by the department will be at no cost or at the cost of the department to provide the information. The amendment is necessary to prevent customer information from being published by third parties and to make clear the obligations incurred by the department in instances where information is sold or given for research purposes.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the repeals and amendment as proposed are in effect, there will be minimal fiscal implications to state government and no implications to local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the preservation of customer privacy and the elimination of redundant regulations.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rules may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The repeals and amendment are proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies relating to the release of customer information, the use of customer information by the department, and the sale of a mailing list consisting of the names and addresses of persons who purchase customer products, licenses, or services.

The repeals and amendment affect Parks and Wildlife Code, Chapter 11.

§53.31. Sales Price Establishment and Adjustment.

§53.32. Magazines and Audio-Visual Products, Publications, and Services.

§53.33. Fee Exempt Informational Materials.

This agency hereby certifies that the repeals as proposed have been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

The amendment is proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies relating to the release of the customer information, the use of the customer information by the department, and the sale of a mailing list consisting of the names and addresses of persons who purchase customer products, licenses, or services.

The amendment affects Parks and Wildlife Code, Chapter 11.

§53.35. Release and Sale of Customer Information.

(a) The department may release customer information to accomplish its underlying mission and goals. It is the policy of the commission that certain personal information about the department's customers shall not be released, including, but not limited to, customers' social security, drivers' license, bank account, credit card, or charge card numbers, except where release of such information is dictated by statute or valid court order.

(b) The department may rent or sell mailing lists consisting of names and addresses of persons who purchase customer products, licenses or services. It is the commission's policy to refuse rental or sale of its mailing list to any potential user at any time if the use proposed for the list is:

(1) For mailings whose purpose is deemed by the department to be contrary to the goals and missions of the department; or for mailings for political candidates, parties, or causes; or

(2) Which contain elements that are dishonest, salacious or otherwise deleterious and which are not in the best interest of the State of Texas.

(c) The rental or sales price of mailing lists may be adjusted periodically by the executive director or his designee to reflect fair market value of such lists.

(d) The department may release customer information, except personal information, without charge or at a reduced fee when the executive director or his or her designee deems that release of such information is in the best interest of the state and;

(1) A nonprofit group or organization which is specifically organized to promote the statewide goals and missions of Texas Parks and Wildlife Department, upon approval of its request, can obtain the lists at the Department's cost. The release of the list will be for a one-time use only and any mailing using the lists must be reviewed and approved by the executive director or his or her designee [Department] before the data is released; and

(2) A nonprofit group or organization that is not specifically organized to promote the statewide goals and missions of Texas Parks and Wildlife Department but that has stated goals which benefit the department, upon approval of its request, can obtain the list at one-half of the market price. The release of the list will be for a one-time use only and any mailings must be reviewed and approved by the executive director or his or her designee [Department] before the data is released; and

(3) Texas Parks and Wildlife Department will treat citizens' requests for information on individuals, businesses and other entities who have received a license or permit from the Department as Public Information requests and furnish the names and addresses for the department's cost if the request is for a small number of names and if disclosure of names and addresses requested is not otherwise prohibited by law. Should the requestor ask for a large number of such names, the market price will be charged. A request for customer names and addresses for publishing on the Internet or other widely distributed media will not be honored if the request is for a large number of names and the department will not honor requests for customer lists to be published on the Internet or other widely distributed media for purposes that are contrary to our goals and mission or are otherwise not in the best interest of the state. Customer information received from the department and published on the Internet by a third party shall be removed within two weeks of a request by the department or the affected customer to remove the information.

(4) Requests for TPW lists for research purposes only will be furnished to the requestor at the department’s cost or with costs waived; provided the requestor agrees in writing to furnish TPW the methodology, all data and conclusions resulting from use of the list(s).

(e) Upon request by a customer, information about that customer, or information about a customer's minor family members, will not be released, rented or sold by the department except as otherwise specifically provided by law.

[(f) Consistent with these rules, the executive director or his designee shall establish a procedure to withhold customer information.]

This agency hereby certifies that the repeals as proposed have 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 53, SUBCHAPTER G
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §53.50, concerning Texas Freshwater Fisheries Center Admission; Fees and Other Entrance Requirements. The amendment would eliminate fixed fees in favor of establish a flexible fee schedule not to exceed the current cap of $6.00 per person. The amendment is necessary to allow the department to reduce admissions fees during off-peak seasons and in response to visitation situations in which the waiver or reduction of fees would serve to enhance visitation.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the rule as proposed is in effect, there will be minimal fiscal implications to the department and no implications for other units of state or local government as a result of enforcing or administering the rule.

3. Public Benefit - Cost Note.

Ms. Doran has also 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 availability of discounted admissions prices to a conservation education facility.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not have an impact on local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide by rule for the collection of a fee for entering, reserving, or using a facility or property owned or managed by the department.

§53.50. Texas Freshwater Fisheries Center Admission; Fees and Other Entrance Requirements.

(a) The department may charge an entrance fee, as determined by the executive director, not to exceed $6.00. [General entrance fees:]

[(1) Adults (17 to 64) $4.00-$6.00;]

(2) Senior (65 and older) $3.00-$5.00;]

[(3) Children (4 to 16) $2.00-$4.00;]

[(4) Children (3 and under) Free.]

(b) [Student groups. Students meeting the following criteria shall pay a discounted entrance fee of $1.00-$2.00 per student:]

(1) Students must be enrolled in an accredited school and in grades preschool to high school;]

(2) Student discounts apply only to groups of ten or more paying students;]

(3) Visits must be scheduled at least 21 days in advance of visitation date;]

(4) Student groups must have one chaperone accompanying each ten students. Chaperones (one per each ten students only) and bus drivers transporting student groups to the Center shall be admitted free of charge.]

(5) All student groups fee payments shall be made in a single lump sum.]

[(c)] The executive director, or his designee, may:

(1) establish additional entrance requirements for student groups and teachers [seeking a student discount entrance fee,] as necessary, to enhance student utilization of the Center; and

(2) [set fees within the range established by the commission; and]

[(3)] waive fee requirements when such a waiver is in the best interest of the public or the department.

This agency hereby certifies that the rule as proposed 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 53, SUBCHAPTER I
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §53.80, concerning Miscellaneous Wildlife Licenses and Permits, and an amendment to §53.70, concerning Vendor Protest Procedure. The repeal would eliminate provisions which are being relocated into a more appropriate and logical subchapter in another rulemaking published elsewhere in this issue. The repeal is therefore necessary to avoid repeating the regulations. The amendment would alter a reference to an occupational title in response a redesignation of that title within the department, and restores grammatical sense to an incomplete sentence that was inadvertently overlooked in a previous rulemaking. The amendment is necessary to accurately reflect the title of the department employee to whom protests should be directed, and to make the provisions read coherently.

2. Fiscal Note.

Judy Doran, staff attorney, 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.

Ms. Doran has also 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 a regulation that accurately reflects the will of the commission.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not have an impact on local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The repeal and amendment are proposed under Parks and Wildlife Code, §11.0171, which requires the commission to adopt policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts, and under Chapter 67, which authorizes the department to charge a fee for a permit issued under that chapter.

The repeal and amendment affect Parks and Wildlife Code, Chapters 11 and 67.

§53.70. Vendor Protest Procedure.

(a) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Director of Purchasing, Payments, and Property [Acquisition and Logistical Services]. Such protests must be in writing and received in the director's office within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested. Copies of the protest must be mailed or delivered by the protesting party to the department and other interested parties. For the purpose of this section "other interested persons" means at least all vendors who have submitted bids or proposals for the contract involved.

(b) If the vendor wants the solicitation or the award process to be terminated, he must make that request in his protest and state the reasons for such termination of the process. The director will review such request and, after consultation with the using division and the appropriate manager, make a written determination within three business days of receipt of the request to terminate from the vendor.

(c) A formal protest must be sworn and contain:

(1) a specific identification of the statutory or regulatory provision(s) the action complained of is alleged to have violated;

(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified above;

(3) a precise statement of the relevant facts;

(4) an identification of the issue or issues to be resolved;

(5) argument and authorities in support of the protest; and

(6) a statement that copies of the protest have been mailed or delivered to the identifiable interested parties.

(d) The director shall have the authority, absent a proper appeal to the executive director of the department, to settle and resolve the dispute concerning the solicitation or award of a contract. The director may solicit written responses to the protest from other interested parties.

(e) If the protest is not resolved by mutual agreement, the director will issue a written determination on the protest:

(1) if the director determines that no violation of rules or statutes has occurred he shall so inform the protesting party, and the [and]other interested parties by letter which sets [set] forth the reasons for the determination; or

(2) if the director determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he will so inform the protesting party and the other interested parties by letter which sets forth the reasons for the determination, which may include ordering the contract void.

(f) The director's determination on a protest may be appealed by an interested party to the executive director of the department. An appeal of the director's determination must be in writing and must be received in the executive director's office no later than ten working days after the date of the director's determination. The appeal shall be limited to review of the director's determination. Copies of the appeal must be mailed or delivered to other interested parties within ten working days after the date of the director's decision and must contain a certification that such copies have been provided as directed in this section.

(g) The appropriate lawyer for the agency must review the protest, the director's determination and the appeal and prepare a written opinion with recommendations to the executive director.

(h) A decision issued by the commission in open meeting, or in writing by the executive director, shall be the final administrative action of the department.

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

Issued in Austin, Texas, on

The repeal is proposed under Parks and Wildlife Code, Chapter 67, which authorizes the department to charge a fee for a permit issued under that chapter.

The repeal affects Parks and Wildlife Code, Chapter 67.

§53.80. Miscellaneous Wildlife Licenses and Permits.

This agency hereby certifies that the rule as proposed 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. 5
Exhibit B

Notice of Intent to Review

The Texas Parks and Wildlife Department files this notice of intention to review Texas Administrative Code Title 31, Part II, as follows:

Chapter 59: Parks

Subchapter A Park Entrance And Park User Fees

§59.1. General Statement.

§59.2. Park Entrance and Use Fees.§59.3. Activity and Facility Use Fees.

§59.4. Reservation of State Park Facilities.

Subchapter B Local Park Planning Assistance

§59.10. Eligibility.

§59.11. Limitations.

§59.12. Application for Assistance.

Subchapter C Acquisition And Development Of Historic Sites, Buildings And Structures

§59.41. General Statement.

§59.42. Chronology and Thematic Organization.

§59.43. Acquisition Guidelines.

§59.44. Development Guidelines.

§59.45. Methods of Additional Funding Other Than Departmental.

§59.46. Maintenance Guidelines.

§59.47. Personnel Selection and Training Guidelines.

NOTE: §59.42 and §59.44 are proposed for rule action elsewhere in this issue.

Subchapter D Administration Of The State Park System

§59.61. General Objectives.

§59.62. Parks and Wildlife Land Classification—Policy.

§59.63. Definitions.

§59.64. Classification and Guidelines.

§59.75. Coastal Management Program.

NOTE: §59.63 and §59.64 are proposed for rule action elsewhere in this issue.

Subchapter E Operation And Leasing Of Park Concessions

§59.101. Definitions.

§59.102. General Requirements for Park Concessions.

§59.103. Selection of a Concessioner.

§59.104. Types of Concession Contracts.

§59.105. Contract Terms.

§59.106. Franchise Fee Rates and Charges.

§59.107. Accounting.

§59.108. Bond and Insurance.

§59.109. Furnishing Utilities.

NOTE: §§59.101 and 59.103-59.108 are proposed for rule action elsewhere in this issue.

Subchapter F State Park Operational Rules

§59.131. Definitions.

§59.132. General Rules.

§59.133. Closing Hours and Overnight Use.

§59.134. Rules of Conduct in Parks.

§59.135. Vehicles, Trailers, Motor Homes, Camping Equipment, or Personal Belongings.

§59.136. Penalties.

NOTE: §59.131 is proposed for rule action elsewhere in this issue.

Subchapter G Relocation Assistance In Park Acquisition Projects

§59.191. Definitions.

§59.192. Purpose.

§59.193. Procedures.

Subchapter H Sea Rim State Park Hunting, Fishing, And Trapping Proclamation

§59.201. Application.

§59.202. Authority.

§59.203. Finding of Fact.

§59.204. Consent.

§59.205. Definitions.

§59.206. Means and Methods: Migratory Birds.

§59.207. Means and Methods: Fur-Bearing Animals.

§59.208. Hunting from Vehicle.

§59.209. Hunting Permits.

§59.210. Checking Game.

§59.211. Open Seasons and Bag Limits: Migratory Birds.

§59.212. Open Seasons and Bag Limits: Fur-Bearing Animals.

§59.213. Fish: Means and Methods; Open Seasons; Bag and Size Limits. §59.214. General.

§59.215. Effective Date.

This review is pursuant to the Texas Government Code, §2001.039, and the General Appropriations Act of 1997, Article IX, §167, 75th Legislature, Regular Session.

The Commission will accept comments for 30 days following the publication of this notice in the Texas Register as to whether the reasons for adopting the sections under review continue to exist and to determine whether the rules reflect current legal, policy, and procedural considerations. Final consideration of this rules review is scheduled for the Parks and Wildlife Commission on January 25, 2001. Any questions or written comments pertaining to this notice of intention to review should be directed to Gene McCarty, Chief of Staff, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, TX , 78744. Any proposed changes to rules as a result of the review will be published in the Proposed Rules Section of the Texas Register and will be open for an additional 30-day public comment period prior to final adoption or repeal of the Commission.

LEGISLATIVE RULES REVIEW
CHAPTER 59, SUBCHAPTER C
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the amendment of §59.42, concerning Chronology and Thematic Organization, and §59.44, concerning Development Guidelines. The amendment to §59.42 would substitute the term 'late prehistoric' for 'neo-American Texas.' The amendment is necessary to reflect accurate terminology in the regulations. The amendment to §59.44 would authorize the department to alter historic sites and structures in compliance with rules or statutes concerning health, safety, or architectural barriers. The amendment is necessary to safeguard visitors and make department facilities and sites accessible.

2. Fiscal Note.

Mike Crevier, budget officer, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Mr. Crevier also has determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be an accurate definition for the purposes of discharging the agency's statutory duty to protect historical artifacts, protection from threats to health and safety, and increased accessibility to department sites and structures.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Joan Blankenbeker, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4909 or 1-800-792-1112 extension 4909 (e-mail: joan.blankenbeker@tpwd.state.tx.us).

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, §13.101, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts.

§59.42. Chronology and Thematic Organization.

(a) The executive director is directed to organize historic sites presently in department ownership into an overall thematic structure and to recommend for acquisition historic sites which will complement a balanced interpretation of the heritage of Texas.

(b) The chronological organization to be used for historic sites acquisition and development is as follows.

(1) Prehistoric Era. The Prehistoric Era consists of the following.

(A) Paleo-Indian Texas (prior to 7000 B.C.).

(B) Archaic Texas (ca. 7000 B.C. 1000 A.D.).

(C) Late Prehistoric [Neo-American Texas] (1000 A.D. to 1600).

(2) (No change.)

(c) (No change.)

§59.44. Development Guidelines.

(a) Affirming its dedication to the accurate depiction of Texas heritage and to the historical integrity of each historic site, building, and structure, the commission directs the executive director to implement the following guidelines in the preparation of development programs for each historic site, building and structure.

(1) The authentic representation of a historic site or structure is of paramount importance to its value in interpreting Texas heritage. Authenticity is measured in part by original location, material, and craftsmanship. Authenticity is further achieved through preservation, restoration, and reconstruction in accord with documented historical, archeological, and architectural information.

(2) The historical integrity of a historic site or structure must be preserved and encroachments in the form of auxiliary management and public facilities must be avoided. Original material and original design intent and execution must not be obscured or destroyed to facilitate interpretation or promote visitor convenience except when unavoidable to comply with rules or statutes pertaining to health, safety or architectural barriers.

(3) (No change.)

(b) (No change.)

(c) (No change.)

This agency hereby certifies that the rule as proposed 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 59, SUBCHAPTER D
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §59.63, concerning Definitions, and §59.64, concerning Classification and Guidelines. The amendment to §59.63 would alter the definition of 'sustainability' to remove reference to cultural systems. The amendment is necessary because 'sustainability' is a biological term and inappropriate in describing cultural systems. The amendment to §59.64 would authorize the department to alter historic sites and structures in compliance with rules or statutes concerning health, safety, or architectural barriers. The amendment is necessary to safeguard visitors and make department facilities and sites accessible

2. Fiscal Note.

Mike Crevier, budget officer, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Mr. Crevier also has determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be an accurate definition for the purposes of discharging the agency's statutory duty to protect public property, protection from threats to the health and safety of visitors, and increased accessibility to department sites and structures.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Joan Blankenbeker, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4909 or 1-800-792-1112 extension 4909 (e-mail: joan.blankenbeker@tpwd.state.tx.us).

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, §13.101, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts.

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

(1)-(9) (No change.)

(10) Sustainability—The capability of natural [and cultural] systems to maintain themselves over time as defined by site specific management goals.

(11) (No change.)

§59.64. Classification and Guidelines.

(a) - (c) (No change.)

(d) Classification: Historical Areas. Historical areas are areas established for the preservation, interpretation and public use of prehistoric and historic resources of statewide or national significance.

(1) - (2) (No change.)

(3) Operation.

(A) All preservation, interpretation, representation, restoration, and/or reconstruction activities should be in accord with documented historical, archeological and architectural information.

(B) The historical integrity of a Historical Area should be preserved, and encroachments from conflicting uses or facilities should be avoided. Original material and design intent should not be obscured or destroyed to facilitate interpretation, or promote visitor convenience except when unavoidable to comply with rules or statutes pertaining to health, safety or architectural barriers.

(C) Interpretation of Historical Areas should reflect the overall statewide historical significance of the area.

(4) (No change.)

This agency hereby certifies that the rule as proposed 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 59, SUBCHAPTER E
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§59.101 and 59.103-59.108, concerning Operation and Leasing of Park Concessions. The amendment to §59.101, concerning Definitions, alters the definition of 'prospectus' to make the definition more accurate, and adds a new definition for 'Partnership Concessions.' The amendment is necessary to clarify that the prospectus is required only for leased concession, and to define a special class of concessionaire. The amendment to §59.103, concerning Selection of a Concessioner, alters subsection (a) to make better grammatical sense and remove a reference to renewal, and alters subsection (c) to remove a reference to renewal and to add new language creating a policy for reviewing applications and selecting a concessioner. The amendment is necessary because the department is implementing a process of reapplication in lieu of renewal, and because a policy for evaluation and recommendation is prudent. The amendment to §59.104, concerning Types of Concession Contracts, alters subsection (a) to require long-term contracts for major concessions, and alters subsection (b) to provide the department with the option of issuing a prospectus for short-term contracts at the agency's discretion. The amendment is necessary to provide reasonable security to prospective concessioners facing major investments as a consequence of selection, and to allow the department to conduct a more thorough evaluation of minor contracts as the situation dictates. The amendment to §59.105, concerning Contract Terms, alters subsection (a) to require the department to provide a sufficient duration of a standard contract to permit a reasonable opportunity for a concessioner to realize a return on investment, and alters subsection (b) to require revocable short-term contracts to be two years, rather than one year, in duration. The amendment is necessary to provide security to prospective concessioners, and thereby encourage applications. The amendment to §59.106, concerning Franchise Fee Rates and Charges, provides a mechanism for assessing penalties for delinquent payments to the department under the terms of a contract, and provides for a waiver of such penalties for good cause. The amendment is necessary to ensure that the department receives franchise fees and to prevent financial disruptions caused by non-payment of franchise fees. The amendment to §59.107, concerning Accounting, makes non-substantive grammatical change to improve the sense of the section. The amendment is necessary to make the provisions of the sections as clearly understandable as possible. The amendment to §59.108, concerning Bond and Insurance, would require a payment from concessioners whose contracts require the construction of public accommodations. The amendment is necessary to ensure completion of projects in the event that the concessioner is unable to fulfill the terms of a contract.

2. Fiscal Note.

Mike Crevier, budget officer, has determined that for each of the first five years that the rules as proposed are in effect, there will be no negative fiscal implications to the department and no fiscal implications to other units of state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Mr. Crevier has also determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be a more efficient and effective process of selecting concessioners, an improved mechanism for protecting the department and the public it serves from financial disruptions caused by delinquent fees, and, as a result of greater security for concessioners, improved quality of concessions and services at state parks.

(B) There is a potential minimal effect on small businesses, microbusinesses, and persons required to comply with the rules as proposed; however, the cost of compliance will be offset by the increased contractual security provided to selected concessioners. There will be no effect on small businesses, microbusinesses, and persons required to comply with the rules as proposed unless selection occurs.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on specific local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Joan Blankenbeker, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4909 or 1-800-792-1112 extension 4909 (e-mail: joan.blankenbeker@tpwd.state.tx.us).

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §13.015, which authorizes the department to grant contracts to operate concessions in state parks or on causeways, beach drives, or other improvements in connection with state park sites, and to make regulations governing the granting or operating of concessions.

The amendments affect Parks and Wildlife Code, Chapter 13.

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

(1) Concessioner—Any person, partnership, or corporation granted concession rights or privileges.

(2) Concessions—Those services and accommodations offered to the public in state parks for which charges, fees, admissions, or similar assessments are collected, excluding park entrance fees.

(3) Franchise fee—The annual fee or percentage of gross receipts a concessioner pays to the state for park concession rights or privileges.

(4) Leased concessions—Rights or privileges granted by the department to any individual, partnership, or corporation to provide visitor services and accommodations for profit within the boundaries of a state park.

(5) Prospectus—A public statement issued by the department giving information on the availability of a leased [park] concession as to location, visitor services and accommodations to be provided, capital and operating investment needed, business experience or other knowledge required, and the procedure to follow in submitting a concession proposal.

(6) State-operated concessions—Visitor services and accommodations operated by park personnel.

(7) Partnership Concessions – Visitor services and accommodations operated by a non-profit park volunteer support group.

§59.103. Selection of a Concessioner.

(a) When it is determined by the executive director that the leasing of a park [a leased] concession is necessary, desirable, and financially feasible for furnishing visitor services and accommodations in a park area, or when it is necessary to secure a new concessioner [or grant a contract renewal] for a leased concession, a prospectus announcing the availability of such concession shall be issued to all interested persons, detailing essential information about the concession, and the procedure to follow in submitting a proposal. The executive director or his designee shall fully publicize the availability of a concession in the immediate area of the park and on a state or national level when circumstances warrant a broader coverage.

(b) A concessioner will be selected with great care to insure that he has ability to operate the concession in an entirely satisfactory manner. In addition to ample financing and ability to conduct the concession in an economical manner, the concessioner should conduct his operation in accordance with the ideals and objectives of the department by adhering to business practices that emphasize public service in addition to a profit motive, and are consistent to the highest practical degree with the preservation and conservation of the area. The department may disregard any or all proposals submitted, or make any counter proposal it may consider reasonable or desirable in accordance with commission policy.

(c) The granting, [renewal,] termination, amendment, transfer, assignment, and enforcement or all concession contract requirements and provisions of such contracts is delegated to the executive director. Program staff will conduct a comprehensive review of all information contained within the submitted proposal. Following review, the agency will conduct personal interviews of each submitter for the purpose of recommending a candidate as the prospective concessionaire. The agency, at its discretion, may empanel a review board consisting of agency staff, and the local community, industry experts, or other individuals relevant or pertinent to the selection.

(d) The executive director may terminate a contract upon finding that a material breach of the contract has occurred.

§59.104.

(a) A standard form [long-term] contract shall be used to grant major concession rights and privileges when the concessioner is required to make sizable investments in merchandise inventories, furnishings or equipment, and maintenance or repair of state-owned buildings and structures.

(b) A revocable short-term contract shall be used to grant minor concession privileges when the scope and size of the concession warrants it. Examples include merchandise vending machines, miscellaneous coin-operated machines, recreational rental equipment, and other miscellaneous services or accommodations the public has a right to expect and the executive director deems appropriate. A prospectus announcing the availability of this type of concession may [will] not be issued.

(c) A revocable temporary contract may be used when deemed necessary that immediate action be taken to continue services or provide interim services.

§59.105. Contract Terms.

(a) The standard form contract shall be executed for a term of years commensurate with the size of the total investment required of the concessioner. The duration of a contract shall be set for a period of time to allow for a reasonable opportunity for return on investment.

(b) Revocable short-term contracts shall be issued for a term of two years[one year] or less.

(c) Revocable temporary contracts shall be issued for a term of six months or less.

(d) No renewal rights shall be made a part of any concession contract.

§59.106. Franchise Fee Rates and Charges.

(a) Franchise fee rates shall be determined by the executive director or his designee in an equitable and fair manner, giving consideration to the various types of operations, gross receipts, net profit, and capital invested. Single or multiple percentages applied to all or various kinds of gross receipts will be considered in new or amended contracts.

(b) A penalty of 5.0% of the franchise fee due shall be imposed on a leased concessionaire who fails to pay the fee as required under the signed contractual agreement, and if that person fails to pay the fee within 30 days after the day when the fee is sue, an additional 5/0% penalty shall be imposed.

(c) Delinquent fees accrue interest beginning on the 61st day after their due date.

(d) The yearly interest on all delinquent franchise fees is the prime rate plus one per cent, as published in the Wall Street Journal on the first day of the calendar year that is not a Saturday, Sunday or a legal holiday.

(e) The penalties and interest assessed for delinquent franchise fees may not exceed the penalties and interest rate established in the Texas Tax Code §111.060 and §111.061.

(f) Penalties and/or interest under this section may be waived by the executive director for a good cause.

(g)[(b)] The right to reconsider and renegotiate franchise fees of concession contracts on an annual basis shall be considered standard practice when conditions warrant an adjustment.

(h)[(c)] The rates and charges prescribed by the concessioner shall be subject to the approval of the executive director or his designee. The reasonableness of the concessioner's rates and charges to the public shall be judged primarily by comparing with current charges for facilities and services of comparable character under similar conditions. Consideration shall be given to:

(1) length of season;

(2) provisions for peakloads;

(3) average percentage of occupancy;

(4) accessibility;

(5) availability and costs of labor and materials;

(6) type of patronage; and

(7) other factors deemed significant as related to the type of concession.

§59.107. Accounting.

(a) The concessioner shall submit reports and keep such records in such a manner as the executive director may prescribe to enable the department to determine that all terms and conditions of the concession contract have been and are being faithfully performed.

(b) The state auditor, or duly authorized representative of the department, shall, for the purpose of audit and examination, have access to records and other books, documents, and papers of the concessioner pertinent to the contract.

§59.108. Bond and Insurance.

(a) The executive director may require the concessioner to furnish a bond conditioned upon the faithful performance of his contract. When the contract award involves construction of public accommodations, the concessionaire will be required to obtain a payment bond.

(b) The concessioner shall carry such insurance against losses by fire, public liability, employee liability, and other hazards as is customary among prudent operators of similar businesses under comparable circumstances, and in amounts satisfactory to the department. The minimum limit for public liability shall be $300,000. The executive director has the authority to increase this limitation when conditions warrant such action.

This agency hereby certifies that the rule as proposed 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 59, SUBCHAPTER F
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the amendment of §59.131, concerning Definitions. The amendment would alter the definition of 'cultural features' by referring to 'pictographs and petroglyphs' rather than 'Indian rock art or historic rock art.' The amendment is necessary to replace archaic and imprecise terminology with accurate art-historical nomenclature.

2. Fiscal Note.

Mike Crevier, budget officer 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. Crevier 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 an accurate definition for the purposes of discharging the agency's statutory duty to protect cultural artifacts.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not have an impact on local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Joan Blankenbeker, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4909 or 1-800-792-1112 extension 4909 (e-mail: joan.blankenbeker@tpwd.state.tx.us).

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, §13.101, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts.

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

(1) -(4) (No change.)

(5) Cultural features—Include, but are not limited to, state archeological landmarks, archeological sites, historic sites and structures, pictographs and petrogryphs[Indian rock art, or historic rock art].

(6) -(16) (No change.)

This agency hereby certifies that the rule as proposed 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. 5
Exhibit C

Notice of Intent to Review

The Texas Parks and Wildlife Department files this notice of intention to review Texas Administrative Code Title 31, Part II, as follows:

Chapter 69. Resource Protection

Subchapter A. Endangered, Threatened, and Protected Native Plants

§69.1. Permit Required.§69.2. Scientific Plant Permit.§69.3. Reporting Requirements.§69.4. Renewal.§69.5. Commercial Plant Permit.§69.6. Permit and Tag Fees.§69.7. Period of Validity.§69.8. Endangered and Threatened Plants.§69.9. Penalties.

NOTE: The contents of this subchapter are currently proposed for rule action and await adoption at a later date.

Subchapter B. Fish and Wildlife Values

§69.19. Restitution and Restoration.§69.20. Application.§69.21. Definitions.§69.22. Wildlife—Recovery Values.

§69.23. Endangered and Threatened Species.

§69.24. Basic Value.

§69.25. Aquatic Life—Recovery Value.

§69.26. Commercial Species—Recovery Value.

§69.27. Updating Existing Recovery Values.

§69.28. Savings Clause.

§69.29. Computed Values for Selected Species.

§69.30. Trophy Wildlife Species.

Subchapter C. Wildlife Rehabilitation Permits

§69.43. Definitions.§69.44. General Provisions.§69.45. Permit Required.

§69.46. Application for Permit.

§69.47. Qualifications.

§69.48. Permit Renewals.

§69.49. General Facilities Standards.

§69.50. Transfers.

§69.51. Release of Rehabilitated Wildlife.

§69.52. Reports.

§69.53. Violations and Penalties.

NOTE: §69.47 and §69.51 are proposed for rule action elsewhere in this issue.

Subchapter D. Memorandum of Understanding

§69.71. Memorandum of Understanding.

Subchapter E. Natural Resource Damages

§69.73. Natural Resource Damage Assessment for Coastal Oil Spills.

Subchapter F. Health Certification of Native Shellfish

§69.75. Definitions.§69.77. Health Certification of Native Penaeid Shrimp.

Subchapter G. Compliance With Coastal Management Plan

§69.91. Consistency.§69.93. Thresholds for Referral.

NOTE: §69.91, concerning Consistency, and §69.93 are proposed for rule action elsewhere in this issue.

Subchapter H. Issuance of Marl, Sand and Gravel Permits

§69.101. Management and Protection.§69.102. Definitions.§69.103. Delegation of Authority.

§69.104. Permit Required.

§69.105. Application Procedures: Individual Permit.

§69.106. Public Comment Hearing Procedures.

§69.107. Contested Case Hearings.

§69.108. Criteria.

§69.109. Findings of Fact.

§69.110. Period of Validity.

§69.111. Requirements.

§69.112. Restrictions.

§69.113. Claims of Private Ownership.

§69.114. Sedimentary Material Permit Application Fees.

§69.115. General Permits.

§69.116. Conditions.

§69.117. Notification and Reporting for General Permits.

§69.118. Best Management Practices.

§69.119. Fees.

§69.120. Exemptions.

§69.121. Prices.

NOTE: §69.120 and §69.121 are proposed for rule action elsewhere in this issue.

Subchapter I. Shell Dredging on the Texas Gulf Coast

§69.201. Contents.

§69.202. Previous Shell Dredging Orders.

§69.203. Definitions.

§69.204. Permit Applications.

§69.205. Department Requirements.

§69.206. Violations.

§69.207. Administrative Action and Penalties.

§69.208. Renewal of Permits.

§69.209. Existing Permits.

NOTE: §69.201 and §69.203 are proposed for rule action elsewhere in this issue.

Subchapter J. Scientific, Educational and Zoological Permits

§69.301. Definitions.§69.302. General Rules.§69.303. Application for Permit.§69.304. Qualifications.

§69.305. Facility Standards.

§69.306. Restrictions.

§69.307. Final Disposition of Specimens.

§69.308. Reports.

§69.309. Inspections.

§69.310. Fees.

§69.311. Violations and Penalties.

NOTE: §69.303 and §69.305 are proposed for rule action elsewhere in this issue.

Subchapter K. Sale of Nongame Species

§69.401. Applicability.§69.402. Definitions.§69.403. Permit Required.§69.404. Permit Application, Issuance, and Fees. §69.405. Permit Renewal.§69.406. Reports.§69.407. Disposition of Stock.

§69.408. Violations and Penalties.

This review is pursuant to the Texas Government Code, §2001.039, and the General Appropriations Act of 1997, Article IX, §167, 75th Legislature, Regular Session.

The Commission will accept comments for 30 days following the publication of this notice in the Texas Register as to whether the reasons for adopting the sections under review continue to exist and to determine whether the rules reflect current legal, policy, and procedural considerations. Final consideration of this rules review is scheduled for the Parks and Wildlife Commission on January 25, 2001. Any questions or written comments pertaining to this notice of intention to review should be directed to Gene McCarty, Chief of Staff, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, TX , 78744. Any proposed changes to rules as a result of the review will be published in the Proposed Rules Section of the Texas Register and will be open for an additional 30-day public comment period prior to final adoption or repeal of the Commission.

LEGISLATIVE RULES REVIEW
CHAPTER 69, SUBCHAPTER C
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §69.47, concerning Qualifications, and §69.51, concerning Release of Rehabilitated Wildlife. The amendment to §69.47 would allow the department at its discretion to refuse permit issuance to any person finally convicted of a local, state, or federal law concerning wildlife. The amendment is necessary to prevent persons with a history of wildlife violations from being entrusted with the care of protected wildlife. The amendment to §69.51 would require permittees to release wildlife determined by the department to be capable of surviving in the wild. The amendment is necessary to ensure consistency with the spirit and intent of wildlife rehabilitation, which is to return wildlife to the wild when rehabilitation has been effected.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the release of publicly-owned wildlife to the wild, and the prevention of known violators of wildlife law from obtaining permits under the subchapter.

(B) There will be no effect on small businesses or microbusinesses required to comply with the rule as proposed. There will be an effect on some persons required to comply with the rule as proposed, namely, that if the person has been convicted of a violation of wildlife law, that person could, at the department's discretion, be prevented from obtaining a permit under the subchapter.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Rosie Roegner, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4491 or 1-800-792-1112 extension 4491 (e-mail: rosie.roegner@tpwd.state.tx.us)

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §43.022, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation.

The amendments affect Parks and Wildlife Code, Chapter 43.

§69.47. Qualifications.

(a) Wildlife rehabilitation permits may be issued only to qualified individuals who:

(1) are 18 years of age or older; and

(2) have letters of recommendation from two persons who have known the applicant for at least two years. The letters of recommendation must be from:

(A) conservation scientists or game wardens currently employed by the department;

(B) licensed veterinarians; or

(C) permitted wildlife rehabilitators.

(b) Evidence of certification by the International Wildlife Rehabilitation Coalition or the National Wildlife Rehabilitator's Association can be substituted for one of the required letters of recommendation.

(c) The department reserves the right to refuse permit issuance to persons who have been finally convicted of any violation of state or federal law applicable to fish and wildlife.

§69.51. Release of Rehabilitated Wildlife.

(a) A permittee shall release all wildlife capable of surviving in the wild in accordance with the provisions of this section, unless specifically authorized in writing by the department to do otherwise.

(b)[(a)] A permit holder shall not release wildlife in such a manner or at such a location so that the released animals are likely to become a nuisance or a depredation threat.

(c)[(b)] Wildlife releases shall not be made in or to fenced or enclosed area that prevent the animal from leaving at will.

(d)[(c)] Protected wildlife shall be released only to habitat appropriate for the species.

(e)[(d)] Permittees may not release wildlife on department property without the permission of the department.

(f)[(e)] A permittee commits an offense if the permittee is on private property and fails to have on their person the written permission of the landowner, lessee, or operator to be on that property.

This agency hereby certifies that the rule as proposed 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 69, SUBCHAPTER H
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §69.120, concerning Exemptions, and §69.121, concerning Prices. The amendment to 69.120 makes nonsubstantive grammatical changes in the interest of clarity. The amendment is necessary to make the regulation read coherently. The amendment to 69.121 corrects a previous oversight in stipulating that the department's actual cost of monitoring the dredging operations from state-owned submerged tidelands, to be assessed against each permittee in proportion to the quantity (percentage of the total) shell removed by each permittee, shall not exceed $50,000 per year, rather than $50,000 total. The amendment is necessary to accurately reflect the will of the commission.

2. Fiscal Note.

Robert Sweeney, staff attorney, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be coherent regulatory language and the recoupment of the costs of monitoring permittees.

(B) There will be an effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed, as permittees will be liable for reimbursement of up to $50,000 per year, as applicable, to the department for monitoring costs incurred by the department.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rule may be submitted to Robert Sweeney, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4433 or 1-800-792-1112 extension 4433 (e-mail: robert.sweeney@tpwd.state.tx.us)

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §86.021, which requires the commission to exempt by rule the projects listed in subsection (b) of that section from any permit requirement or payment to the department for materials removed if the commission finds that the state will not be deprived of significant revenue and there will be no significant adverse effects on navigation, the coastal sediment budget, riverine hydrology, erosion, or fish and wildlife resources or their habitat, and §86.0191, which authorizes the commission to adopt rules to govern consideration of applications; setting and collection of application fees; assessment of transcript costs in contested cases; permit conditions; issuance of permits by rule; pricing of and terms for payment for substrate materials; assignability of permits; payment of refunds; permit renewal; and any other matter necessary for the administration of the chapter.

The amendments affect Parks and Wildlife Code, Chapter 86.

§69.120. Exemptions. The commission finds that the state will not be deprived of significant revenue and there will be no significant adverse effects on navigation, the coastal sediment budget, riverine hydrology, erosion, or fish and wildlife resources or their habitat, and the following activities are therefore [therfor] exempt from any permit requirement of the department or payment to the department for sedimentary material removed from the public waters of this state:

(1) projects to restore or maintain the storage capacity of existing public water supplies;

(2) maintenance projects carried out by public utilities for noncommercial purposes; and

(3) public road projects of the Texas Department of Transportation.

§69.121. Prices.

(a) The commission, with the approval of the governor, establishes a minimum royalty of $.20 ton for sedimentary materials. The permittee shall pay the minimum royalty or a percent royalty of 6.25% on the average selling price per ton sold calculated on a monthly basis, whichever is higher. The percent royalty shall increase to 8.0% on September 1, 1996.

(1) Where the permittee uses a floating dredge and barge or does not have access to a scale, measurement of materials sold may be made in cubic yards and converted into tons according to industry standard prior to payment.

(2) Payment for materials dredged solely for personal use may be based on the minimum royalty.

(b) The commission, with approval of the governor, establishes a price of $1.25 per cubic yard on all grades of shell removed from state-owned submerged tidelands. The price of shell will hereafter be adjusted semiannually, starting October 1, 1981, to reflect any increase or decrease (percent of change) in the Consumer Price Index of retail sales as prepared by the Bureau of Labor Statistics, U.S. Department of Labor (using the National Consumer Price Index, all urban consumers, 1967 equals 100) except that any adjustment for the six-month period starting October 1, 1981, will be based upon the Consumer Price Index statistics compiled for the six months ending June 30, 1981, and each succeeding six-month period will be adjusted in the same manner in order to provide permittees advanced notice of price adjustments, and except that the price of shell per cubic yard will be rounded off to the nearest whole cent and will not be adjusted in any six-month period to less than the base price of $1.25 per cubic yard as established in this section.

(c) In addition, 5.0% of all shell dredged from state-owned submerged tidelands will be delivered to points designated by the department in Texas bays and spread at permittee's expense for reef enhancement. Except that when permittee is required to deliver and spread shell at a point greater than 50 statute miles (computed using the nearest water route through public navigational channels) from the dredge site, the director is authorized to adjust the amount of shell permittee is required to deliver and spread to a quantity less than 5.0% in order to offset permittee's increased delivery cost for the distance over 50 miles. Permittee will not be required to pay for the shell used for reef enhancement.

(d) The department's actual cost of monitoring the dredging operations from state-owned submerged tidelands, not to exceed $50,000 per year, will be assessed against each permittee in proportion to the quantity (percentage of the total) shell removed by each permittee; provided however the maximum monitoring cost of $50,000 will be adjusted each fiscal year using the Consumer Price Index (CPI-U) for the preceding 12-month period except that in no event will the maximum monitoring cost be adjusted below $50,000. The director is authorized to determine the methods and terms for payment of the monitoring cost.

§61.22. Soliciting Bids.

(a) Projects estimated to cost more than $100,000 will normally be solicited by Invitation for Bid [advertising for bids in one edition of at least one newspaper of general circulation in the state, not later than the seventh day before the last day set for the receipt of bids. The department will make a good faith effort to place the ad in the county or adjoining county where the work will be performed.].

(b) The contractor for projects estimated to cost $100,000 or less may be chosen on a selective basis. This procedure requires that every effort be made to solicit bids from at least three prospective contractors within the area of the work.

(c) The department shall make a good faith effort to solicit bids from historically underutilized businesses.

This agency hereby certifies that the rule as proposed 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 69, SUBCHAPTER I
PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §69.201, concerning Contents, and §69.203, concerning Definitions. The amendments to §69.201 and §69.203 would correct spelling and grammatical errors. The amendments are necessary to maintain factually accurate regulations.

2. Fiscal Note.

Robert Sweeney, staff attorney, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Mr. Sweeney also has determined that for each of the first five years the rules as proposed are in effect:

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

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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 Comments.

Comments on the proposed rules may be submitted to Robert Sweeney, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4433 or 1-800-792-1112 extension 4433 (e-mail: robert.sweeney@tpwd.state.tx.us)

5. Statutory Authority.

The amendments are proposed under

§69.201. Contents. The following provisions shall apply to all shell dredging in state-owned submerged tidelands of this state.

(1) The director of the department is expressly authorized to issue shell dredging permits in all the coastal waters of Texas except that at the director's discretion the commission may be requested to consider the issuance of a permit and except that in no event will shell dredging operations be conducted in those areas described as follows.

(A) In Galveston and Trinity Bays within 300 feet of the exposed portions of what are known as Dollar's Reef, Todd's Dump Reef, Hanna's Reef, Fisher's Reef, No Name Reef (located south of the Texas City Dyke), and Moody's Reef and further in no event will dredging operations be conducted in Trinity Bay within 2,000 feet of what is known as Vingtune Island.

(B) In no event will shell dredging operations be conducted in that portion of San Antonio Bay and tributary water bodies north of North Latitude 28 and 22 minutes except that shell dredging operations may be conducted in state Tracts 74, 101, 102, [1] and 106.

(C) Permittee will map and mark the edges of all exposed reefs within 1,500 feet of the proposed dredge operating site prior to the commencement of any dredging within an authorized tract. All mapping and marking will be verified and approved by the department prior to any dredging.

(D) Those sections relating to siltation and to minor violations for siltation of exposed reefs are suspended for operations which occur in state Tracts 74, 101, 102, and 106 in San Antonio Bay when no live oysters are present on an exposed reef at any time during the dredging operation. Permittee will remove all silt from an exposed reef or at the department's option will resurface the entire area of the exposed reef with clean, coarse [course] shell to the satisfaction of the department. If live oysters are present on any exposed reef and siltation occurs to the reef as a result of the dredging operation or related dredging activities of permittee, those sections relating to siltation and minor violations will remain in full force and effect. For purposes of this subparagraph, live oysters are considered to be present on an exposed reef within a state tract when three department samples [yield three], one bushel or more each, [samples] produce an average of one or more market oyster (three inches or larger) per bushel [three inches or larger per bushel], or ten or more seed oysters (3/4 inch to three inches), and spat (below 3/4 inch) combined per bushel [sample]. The director will designate the period of time when the shell will be furnished to the department. The quantity of shell referred to in this subparagraph is in addition to the shell permittee is required to furnish for reef enhancement by §69.121 of this title (relating to Prices).

(E) - (G) (No change.)

(2) - (4) (No change.) Bay.

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

(1) - (12) (No change.)

(13) Operations— Any [Not] aspects of shell dredging activities engaged by any permittee exclusive of exploration by the use of survey and crew boats for buried mudshell and marking the limits of an exposed reef.

(14) - (17) (No change.)

This agency hereby certifies that the rule as proposed 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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