Commission Agenda Item No. 12
Presenter:  Cody Jones

Action
Floating Cabins Permit Rules
May 24, 2012

I.       Executive Summary:  This item presents for adoption a proposed amendment to regulations governing floating cabins in coastal waters. The proposed amendment would streamline the notification/renewal process and also allow a person whose floating cabin permit has expired and become ineligible for renewal to seek review of that decision by an internal review panel.

II.     Discussion:  Under Parks and Wildlife Code, §32.051, a person may not own, maintain, or use a floating cabin in the public coastal water of this state unless a permit has been issued by the department under the provisions of Parks and Wildlife Code, Chapter 32.  Under current rule, the department may renew a floating cabin permit if the permittee has met all statutory and regulatory requirements and has submitted an application for renewal prior to the expiration date of the current permit.  Permits that are not renewed within 90 days after expiration are not eligible for renewal and the cabin for which the permit was originally issued is required to be removed at the owner’s expense.

It has come to the department’s attention that some floating cabins are jointly owned.  Since the current rules require the floating cabin permit to be issued to an individual and do not provide for either multiple permittees or subpermittees of a single floating cabin, there are instances in which a part-owner of a floating cabin who is not the person to whom the floating cabin permit is issued can be unaware of the status of the permit and therefore unable to take steps to renew the permit and prevent the floating cabin permit from becoming ineligible for renewal.

To address these situations, the department proposes to expand the notification process to include all persons listed as owners on the permit and to create a process to allow persons whose permits have expired and become ineligible for renewal to have the expiration reviewed by a panel of senior department managers.  The process as proposed would allow the department to renew an expired permit after further review.

The Regulations Committee at its March, 2012, meeting authorized staff to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the April 20, 2012, issue of the Texas Register (37 TexReg 2867). A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.    Recommendation:  Staff recommends that the commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts an amendment to §55.202, concerning Floating Cabins, with changes as necessary to the proposed text as published in the April 20, 2012, issue of the Texas Register (37 TexReg 2867).”

Attachments-1

  1. Exhibit A-Proposed Floating Cabin Rules

Commission Agenda Item No. 12
Exhibit A

REGULATION OF FLOATING CABINS IN COASTAL WATERS
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §55.202, concerning Period of Validity; Renewal and Transfer of Permits.

        Under Parks and Wildlife Code, §32.051, a person may not own, maintain, or use a floating cabin in the public coastal water of this state unless a permit has been issued by the department under the provisions of Parks and Wildlife Code, Chapter 32. Under current rule, the department may renew a floating cabin permit if the permittee has met all statutory and regulatory requirements and has submitted an application for renewal prior to expiration date of the current permit. Permits that are not renewed within 90 days of expiration are not eligible for renewal and are subject to removal at the owner’s expense.

        Under the current rules, when there are multiple owners of a single floating cabin, the department issues a floating cabin permit to one of the owners as the primary permittee and lists other owners on the permit.  Currently, renewal notices and other correspondence from the department are sent only to the primary permittee.  As a result, there are instances in which an owner who is not the primary permittee may be unaware of the status of the permit and therefore unable to take steps to renew the permit and prevent the permit from becoming ineligible for renewal.

        To address this situation, the department proposes to require all owners of a permitted floating cabin to be treated as permittees for purposes of the notification requirements of the section.  In addition, the department proposes to create a process to allow any owner/permittee listed on a floating cabin permit to seek an informal internal review if he or she failed to submit a timely permit renewal application.  If a review is requested, the decision would be reviewed by a panel of senior department managers.  The process as proposed would allow the department to renew a permit in light of extenuating circumstances upon further review.

        Specifically, the proposed amendment would replace the term “owner” with the term “permittee” throughout the rule and move the text of current subsection (a) into current subsection (c) so that all renewal provisions are in a single section. The proposed amendment also would remove the reference to February 1, 2002, as it was the original regulatory deadline for applications for floating cabin permits and is no longer necessary. Additionally, the deadline for submission of renewal materials would be set at 90 days after the date the permit expires, rather than before the expiration date. The department reasons that the current provision is confusing, since it stipulates that permits will be renewed only if renewal materials are submitted prior to the expiration date of the permit, yet provides another 90 days from the expiration date for renewal. The department believes it is less confusing to provide a single deadline.

         The proposed amendment also alters current subsection (d) to provide that the department will notify each permittee by certified mail in the event a floating cabin permit expires and becomes ineligible for renewal. The proposed amendment to current subsection (d) also stipulates that a request for review of a late permit renewal must be received by the department within 10 working days after the mailing of the nonrenewal notification by the department.  The proposal also adds new paragraphs (1) – (3) to subsection (d) to create a panel of senior managers to review late renewal applications for which a review is requested.  The proposed amendment would allow a permittee whose permit has expired and become ineligible for renewal to have the permit expiration reviewed. The 10-day limit was chosen because by the time a floating cabin permit has become ineligible, at least 90 days have passed since the expiration of the permit, during which time the department has attempted several times to contact all of the permittees listed on a permit. The department believes that 10 days is sufficient as a last-chance opportunity for a permittee to reconcile the status of a permit with the department.

         The proposed amendment also alters the title of the section to reference the fact that it stipulates the period of validity of a permit.

2. Fiscal Note.

         Lt. Cody Jones, Marine Enforcement, 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 and local governments as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

         Mr. Jones 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 additional provisions to allow floating cabins permit holders to have late renewal applications reviewed.

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

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. Since the proposed rules do not make substantive changes and are merely for the purpose of ensuring an accurate cross-reference, the department has determined that the proposed amendment will not impose any direct adverse economic effects on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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

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

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Lt. Cody Jones, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4913 (e-mail: cody.jones@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §32.005, which allows the commission to adopt rules to implement the provisions of the floating cabin statute.

         The proposed amendment affects Parks and Wildlife Code Chapter 32.

         §55.202. Period of Validity; Renewal[Issuance, Renewal,] and Transfer of Permits.

                 (a) [Permits will only be issued to floating cabins:

                         [(1) meeting the eligibility requirements set forth in Parks and Wildlife Code, §32.052;]

                         [(2) and for which all applicable fees have been paid; and]

                         [(3) for which a completed application has been submitted to the department on or before February 1, 2002.]

                 [(b)] Permits issued under authority of this subchapter are valid only during the yearly period for which they are issued without regard to the date on which the permits are acquired. Each yearly permit period begins on September 1 and ends on August 31.

                 (b)[(c)] A person possessing a permit issued under this subchapter may renew that permit by submitting a completed permit renewal form and renewal fee to the department prior to the expiration date of the current permit. The department may renew a floating cabin permit only if:

                         (1) the eligibility requirements set forth in Parks and Wildlife Code, §32.052, have been met; and

                         (2) a permit renewal form, accompanied by the permit renewal fee specified in Parks  and Wildlife Code, §32.055, has been submitted to the department no later than 90 days after the expiration date of the current permit.

                 (c)[(d)] Permits that are not renewed within 90 days after expiration will become ineligible for renewal and the affected floating cabin will be subject to removal at the permittee’s[owner’s] expense according to the provisions of Parks and Wildlife Code,  §32.154. The department shall notify each permittee by certified mail upon determining that a permit has expired and become ineligible for renewal.

                         (1) A permittee whose permit has expired and become ineligible for renewal may request a review of the ineligibility status to show why the permit should be renewed.  A person seeking a review under this subsection must contact the department within 10 working days after the date that the department issues the notification required by this section.

                         (2) The request for review shall be presented to a review panel.  The review panel shall consist of the following:

                                  (A) the Deputy Executive Director for Operations (or his or her designee);

                                  (B) the Director of Law Enforcement (or his or her designee); and

                                  (C) the Director of the Coastal Fisheries Division (or his or her designee).

                         (3) The decision of the review panel is final.

                 (d)[e)] A person possessing a permit issued under this subchapter shall notify the department prior to the transfer of the permitted floating cabin to a new permittee [owner]. Notification shall be on a form provided by the department.

                 (e)[(f)] A person purchasing a permitted floating cabin may not renew the annual permit unless the person has submitted a completed transfer application.

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

         Issued in Austin, Texas, on



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